NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI

 

ORIGINAL PETITION NO. 51 OF 1999 

                                                       

M/s. Packer Sea Food (Pvt) Limited Through its Managing Director Shri C.P.Azariah Samuel Raj Having its registered office at College Road, Nagercoil-1, Kanyakumari District And having factory At 74/2 Kulasekarapuram Village, Vazukamparai, Agastheeswaram Taluk, Kanyakumari District

….Complainant  

Versus

1. The Tamilnadu Industrial Investment Corporation Ltd., 27 Whites Road, Madras: 600014 2. The Branch Manager, Tamilnadu Industrial Investment Corporation Ltd, 37 Cape Road, Nagercoil- 629001

.....Opposite parties                                                                          

 BEFOREHON’BLE MR. JUSTICE  J. M. MALIK,                              PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER  For the Complainant             :     Mr. M.L. Mahajan, Advocate For the Opposite parties       :     Mr. K.P. Toms, Advocate 

 

PRONOUNCED ON:02.01.2013.ORDER

 

PER MR.VINAY KUMAR, MEMBER

M/S Packer Sea Food Private Limited has filed this complaint against the Tamil

Nadu Investment Corporation.  The complaint arises from alleged delay in disbursal and

part non-disbursal of a loan of Rs.70 lakhs, sanctioned by the OPs to the Complainant

for setting up a marine products processing unit.

 

2.      The case of the Complainant is that the loan was sanctioned on 20.10.1993 but

only Rs.15.3 lakhs had been disbursed till 18.3.1994.  By the time the complaint was

filed, only Rs.44.83 lakhs had been released and remaining balance of Rs.25.17 lakhs

and subsidy were never released.  This was inspite of the fact that the Principal, Govt.

College of Engineering, Tirunelveli, appointed by the OPs to evaluate the plant and

machinery, had reported   that the building was worth Rs.41.58 lakhs, excluding cost of

the land.         

3.      The complaint petition gives details of alleged “dillydallying attitude” of the OPs,

which eventually forced him to write to the Complainant on 7.2.1996 stating that it was

left with no alternative but to seek funding facilities from another source.   This letter

(Annexure P-49) stated:-  

“Therefore this is to require you to release the documents that we have deposited with you as additional collateral security to enable us tohypothicate with other financiers.  It is also noted that you yourself and the corporation alone shall be liable for losses, and other damages that we have incurred on account of “Dilly-dallying” tactics adopted by you for the past 1 ½ years in the disbursement to our project.  Since our project is nearing completion we have been driven to this extreme step as you have been dragging the matter unnecessarly and purposely for reasons best known to yourself.”

 

4.      According to the Complainant, the project has suffered delay of 2½ years due to

failure of the OPs to make timely and sufficient disbursal of the sanctioned loan.  Even

after arrangements were made to raise necessary funding from another source, the

NOC was not released by the OPs. Therefore, the Complainant has sought the following

reliefs against the OPs, for loss caused by their negligence, delay and failure to provide

proper service—

 

“ (i)  Interest on delayed completion                               Rs.25.74

(ii)  Cost escalation                                                             Rs.95.99

(iii) interest arising out of non-release of sanctioned

     amount by respondent                                             Rs.2.97 

 

(iv) interest loan on account of delayed claim of

      subsidy amount                                                      Rs.1.94

 

(v)  EB minimum charges payable for the delayed

      Period                                                                   Rs.13.50

 

(vi) mental agony suffered because of the aforesaid

      causes                                                                Rs.10.00

 

(vii) loss of profit including contacting other persons

       for arranging loans/lacs                                      Rs.50.00”

 

 

5.      During the course of these proceedings, the Commission identified six issues for

decision and directed on 6.9.2010 that—

“The complainant shall submit brief written arguments on the six issues, which are required to be decided in this complaint with reference to the evidence on each head and the quantum of claim on each head, copy of the same be furnished to the counsel for the opposite party within four weeks.  Thereafter, counsel for the opposite party shall file item-wise reply on each issue and furnish a copy of the same to the counsel for the complainant within four weeks.  Parties are at liberty to add issues to be decided”.

 

Accordingly, a brief written argument was filed by the Complainant on 9.11.2010.  In

this, the following issues/heads are listed:-

          “a. Interest on Rs.25 lack taken from private party.

          b. Increase of cost or propitiate escalation cost.

c. Delay in release the subsidy by TIIC its actual cost/effect.

          d. Minimum Electricity Charges (EB)

          e. Business loss

          f. Mental Agony”

                           

6.      Per contra, the case of the OPs is that it is a corporation set up by the

government of Tamil Nadu with branches all over the States and with the avowed

objective of “extending financial assistance to various entrepreneurs in the State

of Tamilnadu for development of industries in the State”.  The loan to the Complainant

was sanctioned on 20.10.1993 with clear terms and conditions, which were accepted by

it on 17.1.1994.  As per Clause 43 therein, collateral security for the loan was required to

be provided by the Complainant.  Delay in this, led to delay in disbursal of loan.  OPs

have further alleged that:-

a)      The Complainant sought sanction for purchase of two generator sets and an

additional Plate Freezer from suppliers different from the ones originally purposed.

b)      The procedure for payment required the advance amount to be paid to the supplier

through the opposite parties. Therefore, details were sought from the Complainant for

change of suppliers of generator sets and motors.

d)      As per norms of disbursement release of loan amount for purchase of assets not

envisaged in the scheme, was not permissible.  Such purchases could be made from

contingency. But, contingency itself could be utilized after implementation of the full

project. All equipments considered necessary for the project, should have been included

by the complainant in the original project itself.

e)      Inspection of the factory building by the regional office of OPs revealed that the

Complainant had not purchased any machinery as per the bills submitted.

f)       The machineries were erected in the factory premises by a fabricator, who was not

a supplier as per the sanctioned scheme. 

g)      Principal Government College of Engineering Tirunelveli had valued the building at

Rs.39,56,245/- and the machinery at Rs.21,60,000/-.  The valuation of machinery here

was questioned by the OPs in their letter of 7.3.1994.

h)      If the borrower requests for change of equipment suppliers, the OPs have to verify

the capacity, market reputation and comparative cost of the proposed supplier.  In the

case of generator sets, the change of supplier was agreed by the OPs within a month,

but the supply could not be effected as the Complainant did not accept the condition of

payment after delivery of the generator sets.

i)        When the Complainant asked for NOC to raise working capital from another

financier, there was an overdue of Rs 17 lakhs in his loan account. Therefore, the

Complainant was asked to clear the overdue for issue of the NOC.

j)        Even after the loan account between the two parties was settled, the Marine

Products Export Development Authority, Govt. of India informed that invoices/bills and

receipts submitted by the Complainants to the OPs are fabricated and false.

 

7.      We have carefully considered the pleadings and evidence brought on record

by the two sides and heard their counsels, Mr M L Mahajan for the complainant and Mr

K P Toms for the OPs.  Mr Mahajan drew our attention to the sixteen page document

(signed by the lender/OPs on 28.10.1993) containing the details of sanction of this term

loan of Rs 70 lakhs (Annexure P-2). It projects total cost of the venture as Rs 155 lakhs,

to be funded in the following manner—

                               Loan  from the OP          Rs 70 Lakhs

                               Subsidy/State capital      Rs 15 lakhs

                               Capital                             Rs 50 lakhs

                               Unsecured loans             Rs 20 lakhs

The loan of 70 lakhs was sanctioned for construction of the factory building and

purchase of machinery required for the project. It was to be repaid  in 24 instalments,

after a moratorium of 24 months from the date of the first disbursal. As per the terms, the

disbursal for civil works and equipment was to be made after inspection and valuation.

For this, a valuer was appointed by the OPs. Learned counsel pointed out that

the valuer (Government College of Engineering,Tirunnelveli) submitted reports to the

OPs, from time to time. Their reports from 3.11.1993 to 6.3.1994 (i.e. before the first

disbursal by the OPs) show that an investment of Rs 44.95 lakhs in land & building

and Rs 3.86 lakhs in machinery had already been made by the complainant. 

 

8.      Mr M L Mahajan, learned counsel for the complainant, argued that the total

amount released by the OPs was only Rs 44.83 lakhs. No release was made after

March 1995. Therefore, the balance of Rs 25.17 lakhs had to be raised from private

sources at very high rates of interest, to ensure completion of the project.

 

9.      In reply, Mr K P Toms, learned counsel for the OPs filed additional written

arguments on 24.9.2012 with records of disbursement to show that as on 29.3.2005, in

all Rs 44.83 lakhs towards the term loan and Rs 9.51 lakhs towards subsidy had been

released to the complainant. Learned counsel argued that subsidy and the term

loan together  constituted only 55% of the project cost. Therefore, the commitment of the

OPs was limited to funding 55% of the asset created under the project. The borrower

had created assets worth Rs 89.36 lakhs only. The OPs were required to release only

55% thereof i.e. Rs 49.15 lakhs. Accordingly, actual release fell short by Rs 4.32 lakhs

only which was retained by the OPs towards cost of the machinery supplied by M/S

Rank Engineering Works. In this context, Mr K P Toms referred to the written response

filed by the OP in this Commission on 17.5.1999. Para 23 therein states—

“With regard to paragraph 11 of the complaint, the statement issued by the banker for the account of M/s Rank Engineering Works did not a have any authenticity.  M/s. Lakshmi Vilas Bank, Nagercoil said to have issued statement of account for the company M/s Rank Engineering Works which was having its factory and office at Chennai.  The payments made to the said engineering company were sent to office at Chennai only.  Therefore, the statement issued by a bank at Nagercoil caused suspicion on the genuiness of the statement.  Besides this, the complainant reported to have paid Rs.21.60 lakhs  but the said engineering company has received Rs.4 lakhs only.  Further with regard to the allegation of demanding interest, it is stated that the complainant had to pay the interest accrued to the account and therefore, the second opposite party demanded the interest from the complainant.”

 

10.    This claim, made on behalf of the OPs, was challenged by Mr Mahajan, counsel

for the complainant. He drew our attention to the report of 10.3.1995 submitted by

the valuer, Government College of Engineering, appointed by the OP/Tamil Nadu

Industrial Investment Corporation itself. The three items of equipment having, total value

of Rs 21.60, lakhs figure as the last three items in the report signed by two senior

lecturers of the Engineering Department of the College. When confronted with this piece

of evidence on record, learned counsel for the OPs very gracefully concede that he had

no answer for the same.   It is therefore, clear that the OPs have not verified their facts

before filing the written response of 17.5.1999 and written arguments on 17.9.2012.  At

this stage, we do not wish to make any further observation on this point.

 

11.    The evidence brought on record shows that the first three disbursals were made in

March 1994.  In September 1994 the complainant was informed that further disbursal of

the loan was decided by the OPs to be “withheld”. Thus, no release of loan or subsidy

was made until  29.3.1995.  Rs 25.17 lakhs of loan and Rs 5.94 lakhs of subsidy i.e.

31.11 lakhs out of the commitment of Rs 85 lakhs, was never disbursed.  The final

position is confirmed by the counsel for the OPs in the statement produced before us on

24.9.2012. The allegations of delay in disbursal and non-disbursal of the loan and

subsidy are to be seen in this factual background.

 

12.    In the affidavit evidence filed on behalf of the OPs, delay is attributed mainly to the

decision of the complainant to purchase generator sets and Plate Freezer from suppliers

different from the ones ‘originally proposed’. The request was agreed by the OPs, in so

far as the generators were concerned. But, there is no explanation why no advance was

released in favour of the supplier. Nor is there an explanation why the condition of

supply before payment was imposed when, as admitted in the affidavit evidence of the

OPs, payment of advance to the suppliers was permissible, subject to the same being

routed through the OPs. More importantly, there is no explanation for the resultant

delay. Details in para 17 of the affidavit evidence of the complainant show that it was

over three months.

 

13.    As noted earlier, the stoppage of further disbursals was communicated to the

complainant on 15.9.1994. This was preceded by inspection by the Regional Office of

the OPs. As per the affidavit evidence of the OPs, “The inspection revealed that the

complainant had not purchased any machinery as per the bills admitted.”  However, the

letter of 15.9.1994 (produced on record as Annexure P-9), which is a cryptic

one para letter, gives no idea whatsoever of the reason for stoppage of further

disbursements. But, a reading the affidavit evidence of the OPs, filed on 7.5.2008

together with the objections filed by the complainant on 5.10.1999, gives  a clear idea of

the underlying reason.  As per the complainant, it preferred to buy the generators from

another supplier as it had quoted rates 20% lower than the one chosen by the OPs

(Para26). The OPs do not respond to the question of rate difference but admit that “On

16.3.1994 the complainant requested for change of machinery supplier from

M/s Mahanarayanee Investment and Trading Co.P. Ltd., Madurai to M/s Parry

Engineering and Exports Limited for the purchase of 2 Generator set for which the

second opposite party requested vide their letter dated 17.3.1994 the complainant to

submit the original proforma invoice so as to take a decision on change of supplier.

While it was so, on 29.3.94, the second opposite party issued a commitment letter to M/s

Air Power India Ltd. guaranteeing payment subject to conditions on supply of machinery.

A DD for Rs 6,13,000/- was forwarded to the said supplier as advance out of term

loan  against subsidy eligibility................Also, in another letter dated 6.6.94, the

complainant reiterated the stand to purchase 2 Gensets from M/s Parry & Co., instead of

M/s Mahanarayanee Investments and Trading Co. P.Ltd.”(Para 15).  This is a clear

admission that the OPs were in a hurry to procure the equipment, even before taking a

final view on the request of the complainant to change the supplier.

14.    Following conclusions emerge from the detailed consideration above—

a.   Report of the valuer shows that even before the first disbursal by the

OP,  investment of Rs 44.95 lakhs in the building and Rs 3.86 lakhs in machinery

had been made by the complainant.

b.   Most of the machinery and equipment have been procured subsequent to the

sanction of the loan by the OPs. Therefore, its value, as assessed by

thevaluer rose from 3.86 lakhs in November 1993 to 49.71 lakhs in March 1995.

 

c.   The OPs disbursed part of the loan and subsidy but with long delays between

disbursals. Admittedly, Rs 25.17 lakhs of the term loan and Rs 5.49 lakhs of

subsidy remained undisbursed. 

 

d.   Delay in disbursal is sought to be explained on the ground that the purchased

machinery (though reflected in the evaluation report of 7.7.1994) was not found in

the factory during subsequent inspection by the OPs. But, it is also admitted

that Rs 16.88 lakhs were released in March 1995, based on the valuation report

of 10.3.1995. There is no explanation as to what happened in between to satisfy

the OPs that the ‘missing machinery’ was not physically missing. We are

therefore, of the view that the delay on this account cannot be treated as bona

fide conduct on the part of the OPs.

 

e.   The logic of proportionate release (i.e. OP’s commitment of loan as 55% of the

project cost) is an unconvincing attempt to justify the delay.  It has merely

remained an attempt to take the focus away from the inexplicable delay caused

by the conduct of the OPs. This delay was a negation of their own avowed

objective of extending financial assistance to entrepreneurs in Tamil Nadu for

development of industries in the State. 

 

f.      The delay in procurement of generator sets has not been objectively explained.

On the contrary, OPs’ own evidence shows that it was caused by their attempt to

procure it from a supplier of their choice (though, as revealed by the Complainant,

at a higher cost), against the requirement of the complainant. In this case too, the

delay cannot be called bona fide.

 

g.   In so far as the time taken in release of ‘No Objection Certificate’ to the borrower

is concerned, we agree with the OPs that it could not have been issued before

clearance of the outstanding amount by the complainant.

 

15.    The OPs have sought to rely upon the decision of H’ble Supreme Court of India

in Karnataka State Industrial Industrial Investment and Development Corpn. Ltd.,

(2005) 4 SCC 456.      In this case, the respondent had taken a loan of Rs 116.30 lakhs

from the Karnataka State Industrial Investment and Development Corpn (KSIIDC) in

1991. The borrower committed defaults in repayment. Therefore, the KSIIDC took over

the unit in 1996 and sold it for Rs 171 lakhs in 1998 to a third party. The borrower filed a

writ petition in the High Court praying for declaring the sale null and void. The High

Court decided that borrower should be given an opportunity to make an offer to

purchase on the same terms as agreed by the KSIIDC with the buyer. The decision of

the learned single judge was challenged by the buyer in a writ appeal. The

Division Bench  ordered the KSIIDC to re do the entire sale process and to give the

borrower an opportunity to bring a better offer. Hon’ble Supreme Court held that the

KSIIDC had acted in a bona fide manner and set aside the direction to it to redo the

entire sale process. Facts in the case before us are entirely different. Therefore, in our

view the case of the OP/Tamilnadu Industrial Investment Corporation gets no support

from this decision.   

 

16.    In the result, we hold that the complainant has fully succeeded in establishing that

the delay in disbursal of the term loan with subsidy as well as part non-release of the

same after March 1995, was without any justifiable cause. This failure to provide proper

service to their borrower, amounted to ‘deficiency of service’ on the part of the OPs,

within the meaning of Section 2(1)(g) of the Consumer Protection Act, 1986. We are

therefore of the view that the complainant is entitled to be compensated for the same. 

 

17.    The consequential cost of delay in disbursal and of non-disbursal itself, has been

quantified by the complainant, as directed by this Commission.  As per written

submission of the complainant, the value of total assets had risen to Rs.203.84 lakhs in

May 1996 and Rs.274.39 lakhs by May 1997.  We do not consider it necessary to go

into it.  Because, whatever the actual growth of the Unit set up by the complainant, the

liability of the OPs in the context of the Consumer Complaint, will not travel beyond the

consequences of delay in disbursement of the total agreed quantum of loan and subsidy

as well as of non- disbursal of a part thereof.

 

18.    The effect of this delay has been quantified by the Complainant in six heads, as

per the direction of this Commission, mentioned earlier in this order. Expectedly, it has

not been challenged by the OPs.  Towards the non-released sums of loan and subsidy

interest, Rs.13.16 lakhs has been claimed at 36% per annum.  We consider it proper to

limit it to 18%.  Cost escalation for building and machinery, calculated at 12 and 10%

respectively, are considered reasonable and acceptable.  This comes to Rs.11.75 lakhs.

Similarly, business loss at 10% for five months is considered reasonable and therefore

the claimed amount of Rs.6.45 lakhs is allowed.  However, we do deem it proper to

allow the minimum electricity charge claimed by the Complainant, as it would have

been   payable, in  any case.   Finally, there is no case for allowing further compensation

of Rs.25 lakhs claimed towards mental pain and agony, as interest on delay in releases

cost escalation as well as business loss have separately been allowed.

 

19.    Accordingly, the total compensation payable under all admissible heads is rounded

off to Rs.25 lakhs.  Cost of Rs one lakh is also awarded in favour of the

Complainant.  The OP/Tamilnadu Industrial Investment Corporation Limited, is directed

to pay this amount of Rs.26 lakhs to the complainant, together with interest at 9% per

annum, from the date of the complaint.  The entire amount shall be paid within a period

of three months, failing which the period of delay shall carry additional interest of 2% per

annum.  

.…………………………(J. M. MALIK, J.)

PRESIDING MEMBER 

………………………….                                                                            (VINA

Y KUMAR)                                      MEMBER

s./-

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

ORIGINAL PETITION NO.   39 OF 2003

 

 

1. Sh. Mahesh Prasad Aggarwal S/o late Lala Har Prasad Aggarwal

2. Smt. Deepti Aggarwal Widow of late Rajeev Aggarwal

3. Kumari Manjari

4. Kumari Mayuri

5. Master Akshay

All minor daughters and son of late Rajeev Aggarwal (Through their mother Smt. Deepti Aggarwal, their next Friend and natural guardian) All R/o 39, Inner City, Ring Road,    Agra – 1 (U.P.)

                                                                                    …Complainants

Versus

M/s. Kamayani Patients Care India Ltd. 672, Geeta Mandir NH 2 Guru Ka Taal, Secundera Agra – 282 07 (U.P.)

                                                                             … Opp. Party 

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

            HON’BLE MR. SURESH CHANDRA, MEMBER

For the Complainants         :           Mr. S.C. Singhal, Advocate                                                            With Ms. Mridul Chawla, AdvocateFor the Opp. Pary.                :           Mr. S.K. Sharma, Advocate with Mr.

J.P. Sharma, Mr. A. Poddar, Advocates PRONOUNCED ON         3 rd   JANUARY, 2013

 O R D E R

 

 PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

           Complainants have filed complaint against the opposite party for recovery of

Rs.30.00 lakhs as compensation.

2.         Brief facts of the complaint are that complainant no. 1 is father of deceased,

Rajeev Aggarwal, complainant no. 2 is wife of deceased Rajeev Aggarwal and

complainant nos 3 to 5 are minor daughters and son of deceased

Rajeev Aggarwal.  Father Rajeev Aggarwal aged 41 years met with an accident while

he was proceeding towards Agra as his vehicle overturned and he sustained multiple

serious injuries and became unconscious.  He was immediately taken to opposite party-

hospital at Secundra, Agra where he was admitted and Rs.1200/- were charged for C.T.

Scan of head, Rs.300/- for X-ray chest and wrist, Rs.600/- as OT charges, Rs.500/- as

emergency charges and Rs.500/- as Doctors examination fee.  Rajeev Aggarwal was

plastered in left hand and he was discharged and was informed that he is alright. He

was not given documents of discharge.  Rajeev Aggarwal was complaining of serious

headache and pain at back but no treatment regarding aforesaid pain was given

to Mr. Rajeev Aggarwal while he was in opposite party-hospital.  Rajeev Aggarwal was

taken to the house, though, his legs and hands were not moving properly besides

suffering from severe pain in head and back.  Elderly persons of his family advised to

shift Rajeev Aggarwal to good hospital in Delhi and for this purpose ambulance was

hired on 15.10.2001 and proceeded for Delhi but Rajeev Aggarwal collapsed after he

travelled about 20 kms on account of the injuries sustained by him in the

accident.  Complainants contacted opposite party-hospital to supply entire medical

record but opposite party-hospital refused.  From post mortem report it was revealed

that the deceased had fracture of left partial bone and there was evidence of

haematoma of left side of the brain and even the membranes were found

congested.  100 ml. free clotted blood was also found in the brain.  Opposite party-

hospital neither operated nor advised operation and on account of negligence of

opposite party-doctors, Rajeev Aggarwal succumbed to death. The deceased,

Rajeev Aggarwal was tee-totaller having good health and earning about 3 lakhs per

annum and was also assessed to income tax.  The deceased last assessed income was

Rs.3,35,332/-.  There is longevity of life in the family of the deceased as his father about

75 years old is alive, hence, complainant may be awarded Rs.30 lakhs as

compensation along with 18% p.a interest.

3.         opposite party-hospital filed written statement and submitted that deceased was

given first-aid treatment as outdoor patient at the hospital of opposite party.   It was

admitted that C.T. scan of the head and X-ray of the chest was advised by the opposite

party-hospital and Rs.300/- were charged, Rs. 600/- were charged for operation theatre

and Rs.500/- were charged as fee of doctor.  It was further admitted that first-aid

treatment by putting bandages on the wounds of the deceased was given.   Duty doctor

of opposite party-hospital very vehemently advised the deceased to be admitted in the

hospital but this advice was not followed and was not admitted in the hospital.  When

Rajeev Aggarwal was brought to the opposite party-hospital, he was accompanied by

his friends and after sometime his father and brother Dr. Rohit Aggarwal came there

and they were of the firm view that they did not want to admit Rajeev Aggarwal in

opposite party-hospital or take further treatment from the opposite party-

hospital.  Dr. Rohit Aggarwal represented himself to be a doctor having his own nursing

home at his house where he wanted to treat the deceased.  So, the deceased was not

admitted in opposite party-hospital, hence, question of discharge does not arise.  The

deceased was not in a condition to be taken to Delhi rather should have been admitted

in opposite party-hospital for proper care and treatment.  The deceased was brought to

the opposite party-hospital in the afternoon of 14.10.2001 and was taken away within an

hour by his brother Dr. Rohit Aggarwal, his father and other relatives. As the deceased

was not given proper care and treatment by his own relatives the deceased,

Rajeev Aggarwalexpired.  It was denied that complainants contacted the opposite party-

hospital to supply medical record and opposite party-hospital refused to supply the said

medical record.  The deceased’s earning, longevity of life and his last assessed income

was also denied. It was further submitted that no compensation is payable by opposite

party-hospital as there was no negligence or deficiency of service on the part of the

opposite party-hospital and prayed for dismissal of complaint.

4.         Complainants filed replica and alleged that Duty Doctor of the opposite party-

hospital did not advise admission in the hospital and further alleged

that Dr. Rohit Aggarwal did not say that they do not want to admit the deceased or take

further treatment at the hospital.  Deceased was neither properly treated nor CT Scan

was properly observed and deceased was negligently discharged, he was not taken

voluntarily from opposite party-hospital and further submitted that deceased expired on

account of negligence of opposite party-hospital.

5.         Complainants filed affidavit of Mahesh Prasad Aggarwal (father)

and Dr. Rohit Aggarwal (Brother).  Opposite party filed affidavit of Dr. Munishwar Gupta

(Managing Director of opposite party-hospital).  Parties also filed documents in support

of their case.

6.         Heard learned Counsel for the parties and perused record.

7.         Learned Counsel for the complainant submitted that opposite party-hospital

discharged the deceased Rajeev Aggarwal negligently, though, deceased was not in a

position to move, hence, complainants may be awarded compensation.  On the other

hand, learned Counsel for the opposite party submitted that deceased was never

admitted as indoor patient in opposite party-hospital, but was given first-aid and in spite

of advice of opposite party Duty Doctor, relatives of deceased took away the deceased

from opposite party-hospital in such circumstances, no deficiency on the part of

opposite party-hospital, hence, complaint may be dismissed.

8.         It is an admitted case of the parties that deceased, Rajeev Aggarwal sustained

injuries on 14.10.2001 in an accident and was brought to opposite party-hospital by

some persons.  It is also admitted that deceased Rajeev Aggarwal’s C.T. Scan and X-

ray of chest was done by opposite party-hospital after charging money and opposite

party-hospital also charged Rs.600/- as O.T. Charges and Rs.500/- as Doctor’s

examination fee.  It is also admitted case of the parties that after putting plaster and

bandages on the left hand of the deceased, he was discharged/takenaway by his

relatives from opposite party-hospital.

9.         Learned Counsel for the complainants vehemently argued that opposite party-

Duty Doctor committed negligence in discharging patient from the hospital and placed

reliance on Notification dated 11.3.2000 issued by Medical Council of India.  He has

drawn our attention to para 1.3 of Chapter I (Code of Medical Ethics) according to which

every physician is required to maintain medical record pertaining to his indoor patient for

a period of 3 years.  The important question in this case is whether the deceased,

Rajeev Aggarwal was indoor patient in the opposite party-hospital.  Opposite party-

hospital has proved Annexure ‘E’ vide affidavit of Dr. Gupta which reveals that on

14.10.2001, 4 patients were admitted in opposite party-hospital and deceased was not

admitted in the opposite party-hospital as indoor patient.  In these circumstances,

Notification dated 11.3.2000 issued by the Medical Council of India is not applicable to

the present case and opposite party-hospital was not required to maintain the medical

record of deceased Rajeev Aggarwal, as deceased was treated as outdoor patient and

after C.T. Scan, X-ray and giving first-aid, the deceased Rajeev Aggarwal was taken

away from opposite party-hospital by his family members and relatives. 

10.       Complainant Mahesh Prasad Aggarwal has mentioned in para 1 of his affidavit

that Rajeev Aggarwal died on 21.11.2001 which is not correct in the light of evidence of

other witness and documents which shows that Rajeev Aggarwal died on

15.10.2001.  Complainant Mahesh Prasad Aggarwal and Dr. Rohit Aggarwal who is

brother of deceased have stated in their affidavit that deceased was not fit and on

reaching home he was very uncomfortable and his condition was deteriorating.  His

sufferings were manifold and pain was unbearable and in such circumstances it was

decided to shift him to a good hospital in Delhi and accordingly the ambulance was

hired on 15.10.2001. This evidence reflects that after taking deceased

Rajeev Aggarwal from opposite party-hospital he was brought to his residence which is

not believable because when his legs and hands were not moving properly and was

suffering from severe pain in back and head, no person will take his kith and kin to his

home instead of shifting him to some hospital particularly when deceased’s

brother Dr. Rohit Aggarwal was running Usha Memorial Health Centre in the same city

having 24 hrs. facility for fracture and accident cases as reflected in photograph of

Annexure ‘A’, ‘B’ & ‘C’ which have been proved by opposite party’s evidence.  In normal

course either Rajeev Aggarwal would have been brought

to Dr. Rohit Aggarwal’s hospital or admitted to some other hospital instead of bringing

him home as condition of Rajeev Aggarwal was deteriorating. Complainant’s witness

nowhere explained that after taking Rajeev Aggarwal to opposite party-hospital where

was he kept for another 24 hours or more before proceeding for Delhi.    It was

obligatory on their part to lead evidence and prove that in last 24 hrs. proper care of the

deceased Rajeev Aggarwal was taken which they failed to do, rather they have

suppressed material facts about his treatment in last 24 hours.  

11.       Complainant’s witness simply say that after plaster, opposite party informed that

Rajeev Aggarwal is alright and fit and can be taken to home and he was

discharged.  This statement has not been supported by any other independent witness,

though, as per complaint and written statement, Rajeev Aggarwal was brought to

opposite party-hospital just after accident by other persons and these two witnesses

reached opposite party-hospital after sometime.  Both witnesses being interested in the

complaint cannot be believed unless supported by other independent witness,

particularly, when opposite party in the written statement specifically stated that Duty

Doctor of opposite party-hospital advised the deceased to be admitted in the hospital

but his advice was not followed and Rajeev Aggarwal was not admitted in the hospital.

Same fact has been proved by affidavit of opposite party witness.  In such

circumstances, it cannot be believed that in spite of insistence by the deceased’s father

and brother, the deceased was not admitted in opposite party-hospital and was

discharged but this inference can be drawn that advise of opposite party-hospital was

discarded as deceased’s brother Dr. Rohit Aggarwal was having his own hospital in the

same city.  He and his father insisted opposite party-hospital not to admit

Rajeev Aggarwal in the hospital and took away him for treatment either

in Dr. Rohit Aggarwal’s hospital or in some other hospital where

Rajeev Aggarwal’s condition deteriorated and ultimately died on next day.  

12.       Learned Counsel for the complainant has not alleged any deficiency in taking

C.T. Scan, X-ray and plaster of Rajeev Aggarwal’s left hand.  In such circumstances,

neither any negligence nor any deficiency of service can be attributed on the part of

opposite party-hospital towards treatment of Rajeev Aggarwal and no compensation

can be awarded to the complainant on account of sad demise of the deceased

Rajeev Aggarwal on next day.

13.       Learned Counsel for the complainant placed reliance on I (2006) CPJ 16 (NC)

– Dr.   Shyam   Kumar   Vs. Rameshbhai   Harmanbhai   Kachhiya  in which it was held that

if fees is paid towards receiving medical services by the complainant, the complainant

falls within the purview of consumer. There is no dispute on this legal aspect and

certainly in the present case complainants being legal heir of deceased, falls within the

purview of consumer as opposite party has charged fees for C.T. Scan, X-ray,

etc.  Learned Counsel for the complainant also placed reliance on (2005) 6 SCC I

– Jacob Mathew Vs. State of Punjab and   Anr . in which it was held that complainant

has to prove 3 constituents, namely; (1) the existence of a duty to take care, which is

owed by the defendant to the complainant; (2) the failure to attain that standard of care,

prescribed by the law, thereby committing a breach of such duty; and (3) damage,

which is both casually connected with such breach and recognised by the law, has been

suffered by the complainant.  It was further observed that if the claimant satisfies the

Court on the evidence that these three ingredients are made out, the defendant should

be held liable in negligence.  We agree with the proposition of law laid down

by Hon’ble Apex Court but this citation does not help to the complainants in the present

case.  Pleadings and evidence clearly proves that when Rajeev Aggarwal was brought

to Opposite party-hospital, C.T. Scan, X-ray, etc. were done immediately and his hand

was plastered and in such circumstances, it can be presumed that Opposite party-

hospital took care of the deceased, Rajeev Aggarwal. Complainant has failed to show

any negligence or deficiency in taking C.T. Scan, X-ray or plastering his hand.   Leaned

Counsel for the complainant submitted that Opposite party-hospital discharged

Rajeev Aggarwal against the wishes of deceased, hence, Opposite party-hospital is

guilty of negligence as Opposite party-hospital failed to take standard of care required

under the law.  This argument is devoid of force in the light of discussion made earlier

as we have come to the conclusion that Rajeev Aggarwal, the deceased was never

admitted as indoor patient in the Opposite party-hospital, rather Rajeev Aggarwal was

taken away by the complainant, Mahesh Prasad Aggarwal and deceased’s

brother Dr. Rohit Aggarwal and other relatives  against the advice of Duty Doctor of

Opposite party-hospital and further supressed material facts about Rajeev’s treatment in

last 24 hours after he was taken away from Opposite party-hospital.

14.       Learned Counsel for the complainant also placed reliance on I (1997) CPJ 332

– Kanaiyalal   Ramanlal   Trivedi   &   Ors . Vs. Dr.   Satyanarayan   Vishwakarma   &   Anr . in 

which it was held that in case of death due to medical negligence compensation can be

awarded as in fatal motor accidents.  This citation does not help the complainant in

present case as complainant has failed to prove negligence or deficiency on the part

of Opposite party-hospital.

15.       In the light of the above discussion, it becomes clear that Opposite party-

hospital was neither negligent nor deficient in providing services to the deceased,

Rajeev Aggarwal and complaint is liable to be dismissed.

16.       Consequently, complaint filed by the complainants against Opposite party-

hospital is dismissed.  Parties are directed to bear their own costs.

 ..………………Sd/-……………

( K.S. CHAUDHARI, J)

PRESIDING MEMBER 

..……………Sd/-………………

(  SURESH CHANDRA)

MEMBERK

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

                   REVISION PETITION NO. 897 OF 2012.                                                           

 ( From  order dated  19.01.2012 in FAIA 98 of 2012  in FASR 217 of 2012

 of State  Consumer Disputes Redressal Commission,  Andhra Pradesh )   

  

Shriram Transport Finance Co. Ltd. Represented by its Senior Recovery, Executive, D. No. 54-15-5, 2nd Floor, Dhoom Complex, Near Srinivasa Nagar, Bank Colony, Vijaywada.

                                                                           …Petitioner

                                 Versus

 Syed Mahaboob Ali, S/o Syed Vali Basha, D. No. 19-13/3-20, Main Road, Near Habeed School, Old Rajharajeshwaripeta, Vijayawada, A. P.

     ….Respondent

                                                                                   

 

(2)               REVISION PETITION NO. 898 OF 2012.                                                           

 ( From  order dated  19.01.2012 in FAIA 99 of 2012  In FASR 214 of 2012

 of  State  Consumer Disputes Redressal Commission,  Andhra Pradesh )  

  

The Branch Manager Shriram Transport Finance Company Ltd.  D. No. 54-15-5, 2nd Floor, Dhoom Complex, Near Srinivasa Nagar, Bank Colony, Vijaywada.

                                                                           …Petitioner

                        Versus

 

Syed  Ayesha D/o Syed Abdul Khader D. No. 19-13/3-20, Main Road, Near Habeed School, Old Rajharajeshwaripeta, Vijayawada, A. P.

     ….Respondent                                   

BEFORE:

       

        HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

 

For the Petitioners     :                   Mr. Lenin Singh Hijam,  Advocate

 

 Pronounced on: 4 th   January,     2013

ORDER

 

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

              Above noted petitions have been filed by the petitioners being aggrieved by order

dated 19.1.2012 of State Consumer Disputes Redressal Commission, Andhra Pradesh (for

short, ‘State Commission’). As common question of law and facts are involved, these petitions

are being disposed of by this common order. .

2.       Facts in brief are that respondents/complainants purchased TATA Ace Autos which

have been financed by the petitioners/OP, by hypothecating their vehicles. Petitioners seized

the vehicle without any intimation. Accordingly, respondents filed complaint before the District

Consumer Disputes Redressal Forum-II Vijayawada, (for short, ‘District Forum’).

3.       Notices of the complaints were issued to the petitioners. Inspite of receiving the notice,

petitioners failed to contest the matter before the District Forum. Accordingly, District Forum,

vide its order dated 08.06.2011, allowed the complaints.

4.    Aggrieved by the order of the District Forum, petitioners filed appeals before the State

Commission. Alongwith it, applications seeking condoning the delay of 168 days were also

filed. The State Commission, vide impugned order, dismissed the same.

5.       Hence, the present revision.

6.       I have heard the learned counsel for the petitioners who have also filed written

arguments in support of its case.       .

7.      Petitioners, as per its written arguments have challenged the order passed by the fora

below on merits. Regarding applications for condonation of delay, it has been simply

mentioned that small period of delay can be condoned under the Consumer Protection Act,

1986 (for short, ‘Act’) by imposing cost. In support, learned counsel has relied upon certain

judgments also. 

8.     State Commission in its impugned order observed;“2)                  The opposite party finance company preferred the appeal when it

was directed to return the vehicles on payment or certain amounts or pay Rs.1,28,900/- + Rs.72,000/- + Rs.57,800/- together with compensation of Rs. 5,000/- and costs of Rs.2,000/- and along with it above application to condone delay of 168 days in filing the appeal on the ground that on receipt of copy of order on 9.11.2011 it had contacted its counsel and on verification it came to know that no notice was served nor an opportunity was given. On that it had taken copy of the record from the Dist. Forum, and in the process delay of 168 days was caused. It also alleged that the

complainant sent the notice to its older address knowing full well that it has shifted its office.

 6).         When the delay was whopping 168 days without any explanation and

considering the fact the delay in preferring the appeal was not satisfactorily explained, it is a fit case where the petition is liable to dismissed, and consequently reject the appeal. 

         7).               In a latest decision the Hon’ble supreme Court in Anshu Aggarwal Vs.

New Okhla Industrial Development Authority reported in IV (2011) CPJ 63 (SC) opined:

“  It is also opposite to observe that while deciding an application filed in such cases for condonation of delay, the court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer foras. With the above observations, the application for condonation of delay is rejected and the special leave petition is dismissed as barred by limitation”.  

 8)                        The parties seeking relief has to satisfy the court that he/she

has sufficient cause for not preferring the appeal within the time prescribed and the explanation has to cover the entire period of delay. A litigant cannot be permitted to take away a right which has accrued to his adversary by lapse of time. Proof of sufficient cause is a condition precedent for the exercise of discretion of jurisdiction vested in this Court under Section 15(a) of the Consumer Protection Act. The discretion conferred on this court is a judicial discretion and is exercised to advance justice and even if there is a strong cause for acceptance of the appeal that would not be a ground for condoning the delay. Consumer Protection Act provided for speedy redressal to consumer disputes. It follows that the delay cannot be allowed to occur in a routine way and sufficient cause should be made with specific reasons given supported by material; and that the discretion for entertaining the appeals filed beyond the period allowed will not be exercised in a light and routine manner.

9)                      We may also state herein that the respondent should not be denied the right accrued to him on expiry of limitation provided for to prefer an appeal. If he receives summons or notices after a lapse of time he may surprise and may not be able to comprehend as to when the litigation would come to an end. As was opined the explanation has to reasonable, plausible and believable. Mere explanation is not sufficient for condoning the delay in favour of applicant. It is does not satisfy the ingredients, and that it does not reflect ‘sufficient cause’ then the application should be dismissed. When consistently routine and rigmarole  facts are pleaded without any justification or proof

condonation of delay cannot be made. We are of the opinion that the ground being routine and absolutely n o document whatsoever was filed to justify the delay, we are unable to entertain the application”.

9.       It is basic principle of law that question of limitation should be decided at the threshold.

Without deciding the question of limitation, petition cannot be considered on merits.

10.    Admittedly, petitioners were ex parte before the District Forum and as such no written

statement was filed. Under these circumstances, petitioners have no defence on merits.

Moreover, valuable rights have accrued in the favour of the respondents.

11.   It is well settled that “sufficient cause” for condoning the delay in each case is a question of

fact.

12.     In  Ram Lal and  Ors.  Vs.  Rewa  Coalfields  Ltd.,  AIR  1962 Supreme Court 361, it

has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

13.          Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994

Punjab and Haryana 45, it has been laid down that;

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

14.     In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been

observed:

      “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be

applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

15.          Hon’ble Supreme Court after exhaustively considering the case law on the

aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd.

Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as

under;

“We  have  considered   the  respective    submissions.  The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that   they    do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the  legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same   time, the courts are bestowed with the power to condone the delay, if sufficient cause   is   shown for not availing the remedy within the stipulated time.

         The   expression  "sufficient cause" employed  in   Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which  sub serves the   ends   of   justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has  justifiably advocated adoption of a liberal approach in condoning the delay of short duration   and a   stricter   approach where the delay is inordinate - Collector, Land   Acquisition,   Anantnag v. Mst. Katiji (1987)2 SCC 107, N. Balakrishnan v. M. Krishnamurthy  (1998) 7 SCC 123 and 10 Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106”.

16.     Apex Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has observed ;

   “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras”.

17.    Petitioners’ affidavit seeking condonation of delay, filed before the State

Commission, interalia states;

 “ That the District Forum was pleased to dispatch the said orders on 23.06.2011 and the same was not served to our company and came

to know about the pendency of the litigation only when the complainant has sent the notice to the new address on 09.11.2011. I crave leave of this Hon’ble Commission to read the memorandum of grounds as part and parcel of this affidavit.

3.     I submit that the said order was received by us on 9.11.2011. That after receiving the orders I have contacted my counsel and requested to obtain all the case papers and after verifying the same I came to know that no notice is served to us and with out giving us any opportunity the order is passed I immediately applied Original certified copy of the Order and other contacted papers from the court as such could not hand over the entire material papers including the original order copy to the Company Counsel for filing the Appeal in time.

4. I submit that I came to know about the legal proceedings on 09.11.2011 immediately all the relevant papers were sent to the counsel for filing appeal. During the process there is a delay______days in filing the Appeal. The delay in filing the Appeal is caused due to the above reason which neither will fall nor wanton it is just and necessary that this Hon’ble Commission may kindly condone the delay in interests of justice. I,  therefore, pray that this Hon’ble State Commission may be pleased to condone the delay of________ days in filing the above Appeal otherwise the petitioner will suffer great damage irreparable loss which cannot be compensated in any manner”.

18.   In entire affidavit, petitioner has nowhere stated as to how much days of delay was

there in filing the appeal before the State Commission. Be that as it may, as per affidavit

case of petitioner is that District Forum has dispatched the order on 23.06.2011 which

was not served to their Company. Petitioner came to know about the pendency of the

litigation only when respondent had sent the notice at the new address on 9.11.2011.

Affidavit further states that, petitioner thereafter contacted its counsel. No details have

been mentioned in the affidavit so as to show as to when, petitioner after getting the

copy of order on 9.11.2011, had sent the papers to its counsel. What is the name and

address of that counsel and on which date the appeal was made ready. The affidavit is

absolutely silent on these material facts.

19.    Main plea taken by petitioner is that they had shifted to a new address and as

such they could not get the copy of order passed by the District Forum within time. This

plea is against the record

20.    In the complaint (Page 41 of the paper-book) address of petitioner has been

mentioned as;              “Shriram Transport Finance Company Ltd., Rep. by its                Branch Manager, D. NO. 40-1-100, B.H.R. Plaza,

              Benz Circle, Kanna Nagar, Vijayawada ”. 

21.     District Forum has also mentioned the same address in its order, dated

8.6.2011.  Even in appeal memo filed by the petitioners before the State Commission,

same address has been mentioned. Appeal before the State Commission was filed in

January, 2012. Thus, as per petitioners’ own case, above mentioned was the address

of the petitioner in January, 2012 also. Thus, this plea that petitioner did not receive the

copy of order of District Forum and they came to know about the litigation only when

respondents had sent notice to their new address on 09.11.2011, is against the record.

22.    There is nothing on record to show that petitioner did not get the copy of the order

at the address mentioned in the complaint. Interestingly, petitioners have not placed on

record the certified copy of the order of the District Forum, so as to show as to on which

date certified copy of order dated 8.6.2011 was prepared and on which date, the same

dispatched and at which address it was sent. In the absence of these relevant facts,

inference has to be drawn against the petitioner.

23.      Since, no sufficient cause has been shown by the petitioner in its application

seeking condonation of delay, the State Commission was justified in not condoning the

delay. I do not find any ambiguity or legality in the impugned order passed by the State

Commission. Thus, there is no jurisdictional or legal error in the impugned order.

Hence, present revision petitions are accordingly dismissed with cost of Rs.10,000/-

(Rupees Ten Thousand Only) each.

24.  Petitioners are directed to deposit the total cost of Rs. 20,000/- (Rupees Twenty

Thousand only) by way of demand draft in the name of “Consumer Legal Aid

Account” of this Commission, within four weeks from today.

25.     In case, petitioners fail to deposit the aforesaid costs within the prescribed period,

then they shall also be liable to pay interest @ 9% p.a., till realization.

26.       List on 15th  February, 2013 for compliance

                                                                                   ……………………………...J

(V.B. GUPTA)

                        PRESIDING MEMBERSSB

 

 

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO.   1660     OF   2011 (From the order dated 13.04.2011 in Appeal No.610/08 of the Rajasthan State

Consumer Disputes Redressal Commission, Jaipur)

 

Abhikram, Through its Partner Mr. Nimish Patel, Amrit-Lila Bungalow, Off Nagari Hospital Road, Near Gujarat College, Ahmedabad – 380 006

…        Petitioner/OP

          Versus

 Hotel Himmatgarh Palace, through Col. Mansingh Managing Director, Thar Hotel (P) Ltd., Jaisalmer – 345 001

                                     …    Respondent/Complainant

BEFORE

 

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

 

            For the Petitioner : Mr. Shivram, Advocate     

          For the Respondent : Mr. Bharat Bhushan, Advocate

 

PRONOUNCED ON       8 th   January ,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER

          This revision petition has been filed against the order dated 13.4.2011 passed by

the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short, ‘the

State Commission’) in Appeal No. 610/08 – Hotel Himmatgarh Palace Vs. Abhikram by

which order of District Forum dismissing complaint was set aside and appeal was partly

allowed and respondent/petitioner was directed to pay Rs.2,65,300/- along with 9% p.a.

interest to the complainant.

2.       Brief facts of the case are that respondent/complainant hired architectural and

structural consultancy of the petitioner/OP for renovation and extension of

the Himmatgarh Palace Hotel complex at Jaisalmer.  This service was to be provided in

two stages, namely; conceptual stage and schematic stage.  Complainant paid a sum of

Rs.5,30,600/- as consultancy fee to the opposite party but as conceptual design was not

complete, complainant filed complaint for refund of fee along with compensation and

cost of litigation.  OP/respondent filed written statement and submitted that complainant

is not a consumer as defined in the Consumer Protection Act, hence, complaint may be

dismissed.  Further, it was alleged that complaint has been filed with the illegal motive

to get the work completed without paying fees and took many other objections regarding

jurisdiction, etc.  Learned District Forum vide its order dated 4.3.2008 dismissed the

complaint holding that complaint does not fall within the purview of consumer against

which State Commission vide impugned order partly allowed the complaint.  Hence, this

revision petition has been filed.

3.       Heard learned Counsel for the parties and perused record.

4.       Learned Counsel for the petitioner submitted that complainant/respondent does

not fall within the purview of consumer and learned State Commission has committed

error in allowing complaint partly as the purpose of availing services of the petitioner

was for commercial purposes, hence, petition may be allowed and order of the State

Commission may be set aside.  On the other hand, learned Counsel for the respondent

submitted that order passed by the learned State Commission is in accordance with law

as complainant after retirement from military services tried to develop his palace for his

livelihood, hence, the petition may be dismissed.

5.       As per averment of the complaint, complainant is

Hotel Himmatgarh Palace.  Nowhere it has been mentioned in the complaint that its

Director, Man Singh is running this Palace for earning his livelihood by means of self-

employment.  Perusal of paragraph 10 of the District Forum order reveals that about 80

rooms were to be developed in complainant’s hotel. Memo of appeal filed before the

learned State Commission also reveals that complainant, Himmatgarh Palace is branch

of Thar Hotels (P) Ltd. which is registered under Company’s Act.  Thus, it becomes very

clear that complainant, Himmatgarh Palace is branch of Thar Hotels (P) Ltd. and about

80 rooms were to be developed in this hotel and for this purpose architectural services

were taken from the petitioner/OP.

6.       Learned Counsel for the petitioner has rightly argued that developing 80 rooms

for hotel purposes cannot come within the purview of earning livelihood by means of

self-employment.  Learned Counsel for the respondent has simply argued that hotel

was to be developed for self-employment which argument cannot be accepted because,

firstly, no averment has been made in the complaint that services were availed for

earning livelihood by means of self-employment and secondly complainant being

branch of Thar Hotels (P) Ltd.,Jaisalmer, this business cannot come within the purview

of business for earning livelihood by means of self-employment.  In such

circumstances,   complainant/respondent does not fall within the purview of consumer

under Section 2 (d) of the C.P. Act.  Complaint was not maintainable before District

Forum and learned District Forum has not committed any error in dismissing complaint,

though, on other grounds and learned State Commission has committed error in partly

allowing the complaint and petition is liable to be accepted.

7.       Consequently, the revision petition filed by the petitioner against the respondent

is allowed and impugned order dated 13.4.2011 passed by the learned State

Commission is set aside and complaint is dismissed.  Complainant/respondent may

initiate appropriate proceedings for recovery of fees, etc. before any other Forum/Civil

Court.  Parties to bear their own cost.                                                                         ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER 

 

..……………Sd/-………………

( K.S. CHAUDHARI, J)

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI

 REVISION PETITION NO. 2270 OF 2011

[Against the order dated 01.04.2011 in Appeal No. 389/2010 of theState Consumer Disputes Redressal Commission, U.T. Chandigarh]

M/s Worldwide Immigration Consultancy Services Ltd. Through its Authorized Representative Shri Rajiv Bajaj SCO No. 2415-16, Sector 22-C Chandigarh

                                                …      Petitioner 

Versus 1.     M/s Reliance General Insurance Co. Ltd. (Anil Dhirubhai Ambani Group) Through its Chairman SCO No. 212-213, First Floor, Sector-34 Chandigarh 2.     M/s Reliance General Insurance Co. Ltd. (Anil Dhirubhai Ambani Group) Through its General Manager SCO No. 212-213, First Floor, Sector-34 Chandigarh 3.     M/s Reliance General Insurance Co. Ltd.Through Rajesh Sharma, Sr. Manager SCO No. 212-213, First Floor, Sector-34 Chandigarh

                                        …      Respondents BEFORE: HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBERHON’BLE MR. SURESH CHANDRA, MEMBER For the Petitioner       :  Mr. Sunil Goyal, Advocate                                   Mr. Sujit K. Singh, Advocate For the Respondents  :  Mr. Navneet Kumar, Advocate Pronounced on :  9 th   JANUARY, 2013  

O R D E R 

PER SURESH CHANDRA, MEMBER 

        This revision petition has been filed under Section 21(b) of the Consumer

Protection Act, 1986 against the order dated 01.04.2011 passed by the State Consumer

Disputes Redressal Commission, U.T. Chandigarh (‘State Commission’ for short), by

which the State Commission dismissed the appeal filed by the petitioner.  The petitioner

had through his appeal before the State Commission challenged the order dated

31.08.2010 passed by the District Consumer Disputes Redressal Forum-II, U.T.

Chandigarh (‘District Forum’ for short) in Complaint Case No. 1456 of 2009, by which

the District Forum had dismissed the complaint of the petitioner.  The orders of the

District Forum and the State Commission are placed on record.

2.     Briefly stated, the facts of the case are that the petitioner/complainant had

purchased a vehicle BMW X Series X5 3.0 D from M/s Krishna Automobiles,

Chandigarh vide invoice dated 29.07.2008 for an amount of Rs.57,95,000/-.  This

vehicle was insured with M/s Reliance General Insurance Co. Ltd., who are the

respondents/opposite parties, vide Private Car Policy valid for the period 27.07.2008 till

midnight 28.07.2009.  The Insured Declared Value (IDV) of the vehicle was

Rs.55,05,250/-.  On 18.12.2008, the vehicle met with an accident at Chandigarh and

suffered extensive damage, about which an FIR was lodged with the police station and

accident was also reported to the office of the respondents/opposite parties.  On

30.12.2008, the said vehicle was inspected by one Shri Kailash Chandra, Surveyor and

Loss Assessor, who assessed the loss and prepared an estimate for repairs.  As per the

report of the surveyor, the damage to the vehicle was assessed at Rs.41,95,457/-.

According to the petitioner/complainant, the repairs of the said vehicle had crossed 75%

of the IDV and hence the vehicle was to be declared as total loss as per terms of the

policy.  However, the respondents/opposite parties refused to declare the said vehicle

as total loss case and insisted on getting the repairs of the vehicle done.   Later on, it

appears that another surveyor, namely, Engineer Vinod Kumar Sharma, independently

surveyed the vehicle on 12.02.2009 and vide his report dated 12.02.2009 assessed the

loss at Rs.41,56,839/-.  This surveyor also remarked that it would not be much

economical to get the vehicle repaired as after the major repairs, the vehicle would not

come to its original position.  It is the case of the petitioner/complainant that despite the

later survey report and his repeated requests, the respondents/opposite parties kept on

delaying the settlement of the claim and paid only Rs.22,99,000/- to the

petitioner/complainant as claim amount and additional sum of Rs.20,00,000/- was

received on sale of the salvage to a third party with the help of the respondents/opposite

parties.  As such, according to the petitioner/complainant, the total amount paid to the

petitioner/complainant was Rs.42,99,000/- i.e. 78.08% of the IDV, which is more than

75% of the IDV and, hence, it should have been treated as the case of total loss but

since the respondents/opposite parties declined to do so, alleging deficiency in service

on their part, the petitioner lodged a complaint before the District Forum, which, as

stated above, the District Forum dismissed.  The appeal filed against this order also

came to be dismissed by the State Commission vide its impugned order and in these

circumstances the petitioner/complainant has come to the National Commission through

the present revision petition.

3.     We have heard Mr. Sunil Goyal, Advocate for the petitioner/complainant and Mr.

Navneet Kumar, Advocate for the respondents/opposite parties and perused the

record. 4.     The broad facts of the case are more or less not under dispute.  The only question,

which has arisen for our consideration in this case, is as to whether the plea of the

petitioner/complainant to treat the claim of the petitioner/complainant as a total loss in

the light of the report of the second surveyor, Engineer Vinod Kumar Sharma, who was

not appointed by the Insurance Company, should be accepted in spite of the

petitioner/complainant having accepted the payment of Rs.22,99,000/- as full and final

settlement from the respondents/opposite parties.  Both the Fora below have rejected

the case of the petitioner/complainant while dismissing the complaint.  The State

Commission while dismissing the appeal of the petitioner/complainant and upholding

the order of the District Forum has recorded the following observations in support of the

impugned order :-

“10.  The learned counsel for the OPs i.e. M/s Reliance General Insurance Company Limited has argued that the complainant has been compensated fully by the OPs.  As per the terms and conditions, an IRDA approved surveyor was deputed to assess the loss.  As per the report of the surveyor (Annexure R-2), the cash loss value was assessed at Rs.22,99,000/-.  As per this report, the vehicle was very much repairable and was not a case of total loss within the meaning of the policy and for this reason, the OPs requested the complainant to get the vehicle repaired.  Since the complainant was no(t) interested to get his vehicle repaired, therefore, the complainant has opted to settle the claim at cash loss basis and the OPs have settled the claim of the complainant after receiving the unconditional and free consent of the complainant for opting the cash loss and not choosing it to get the vehicle repaired.  Hence, as per the request and consent of the complainant, the cash loss settlement was agreed upon, and the value of the claim was assessed at Rs.22,99,000/-.  This was less than 75% of the IDV, which was duly accepted by the complainant in full and final settlement of the claim.  Further the complainant has also received a sum of Rs.20 lacs as a salvage value, hence the complainant in total has received a sum of Rs.42,99,000/-.  It is further argued that the report of Vinod Kumar Sharma, Surveyor is not admissible as this surveyor is not authorized surveyor of the OPs. It is next argued that the complainant has been fully compensated, hence prayed that the appeal filed by the complainant may kindly be dismissed with the heavy costs.

 11.   After going through the facts of the case, even we are of the opinion that the report of the surveyor Sh. Vinod Kumar Sharma, placed on record by the complainant is only an estimate for the repair of the vehicle.  Moreover, this report of Sh. Vinod Kumar Sharma, Surveyor is of no value because he was not appointed as a surveyor by the insurance company for settlement of the claim.  The report of the authorized surveyor i.e. Sh. Kailash Chandra, who was duly appointed, has been placed on record by the OPs, Annexure R-2 wherein the net claim amount has been shown as Rs.22.99 lacs, which was duly

accepted by the complainant as full and final settlement.  It is also clear that the complainant has also received a sum of Rs.20 lacs as salvage and in this respect, a discharge voucher was duly signed by the complainant.  It is an admitted fact that the complainant has issued a consent letter dated 3.7.2009.  No doubt, later on the complainant has also filed an applicated dated 12.8.2009, for withdrawal of the above said consent letter dated 3.7.2009 with regard to full and final settlement.  In our opinion, in the absence of any cogent evidence, the reasons given for withdrawal of the consent letter is meaningless.  Moreover, the OPs have immediately released the claim amount to the complainant after receiving the consent letter, which was duly received by the complainant without any protest.  As, in the present case, the OPs have already settled the claim of the complainant as per the surveyor report.  Therefore, there is no deficiency in service or unfair trade practice on the part of OPs and the learned District Forum has rightly dismissed the complaint.  Therefore, we are of the view that the appeal filed by the complainant against the order passed by the learned District Forum is liable to be dismissed as devoid of merit.

 5.     We agree with the view taken by the State Commission in the matter.  Besides the

fact that the second surveyor was not appointed by the Insurance Company, admittedly

the petitioner/complainant had accepted the net claim amount of Rs.22,99,000/- in full

and final settlement of his claim and issued a consent letter dated 03.07.2009.  In the

absence of any fraud, misrepresentation, undue influence or coercion being used by the

Insurance Company to make the petitioner/complainant to sign the discharge voucher,

the claim now made by the petitioner/complainant cannot be accepted.  In the given

facts and circumstances, the three cases, namely, United India Insurance v. Ajmer Singh Cotton & General Mills & Ors. [II (1999) CPJ 10 (SC)]; Amir Ali A. Mukadam v. United India Insurance Co. Ltd. [IV (2007) CPJ 234 (NC)]; and National Insurance Co. Ltd. v. Boghara Polyfab Private Limited [(2009) 1 SCC 267] cited and relied on

by learned counsel for the petitioner/complainant would not provide any comfort to the

petitioner/complainant since each case has to be decided on its own merits in the light

of the given circumstances. 

6.     Keeping in view the facts and circumstances of this case, we do not see any

reason which would justify our interference with the impugned order. The revision

petition, therefore,  stands dismissed but with no order as to costs.

 ……………Sd/-……………….

(K.S. CHAUDHARI, J.)PRESIDING MEMBER

  

…………Sd/-…………………     (SURESH CHANDRA)

MEMBER Mukesh 

 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI 

 

REVISION PETITION NO.4073 OF 2012(From the order dated 16.07.2012  in  First Appeal No.166/2012 of the Kerala State

Consumer Disputes Redressal Commission, Thiruvananthapuram)

 

MR. SANKARANKUTTY P. PORAKKATT HOUSE, THALAVANIKKARA P.O. THALORE-680 306, THRISSUR DISTRICT, KERALA STATE.

                                                        ...... PETITIONER

            Versus

THE DEVELOPMENT OFFICER RUBBER BOARD REGIONAL OFFICE ANAPPARA, RAMAVARMAPURAM P.O., THRISSUR DISTRICT, KERALA STATE PINCODE: 680 631,

                              ....... RESPONDENT

 

BEFORE:

HON’BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBERHON'BLE MR.SURESH CHANDRA,  MEMBER       

For the Petitioner                   :                                     In person

 PRONOUNCED ON:               January, 2013          

ORDER

PER SURESH CHANDRA, MEMBER

          This revision petition challenges order dated 16.07.2012 passed by the Kerala

State Consumer Disputes Redressal Commission, Thiruvananthapuram (‘the State

Commission’ for short) by which the State Commission dismissed the appeal filed by

the petitioner.

 2.      The factual matrix of this case are that the petitioner-complainant purchased 190

rubber stems from the respondent-opposite party on 31.07.1991 for Rs.617.50 on a

subsidized rate.  According to the petitioner, the stems did not grow and the petitioner

lost everything in the process.  Since the petitioner was not familiar with the rubber

plantation, he could not understand the quality of the rubber stems supplied to him by

the respondent.  Out of the 190 stems, very few had sprouted but those few also did not

grow.  This was brought to the notice of the Field Officer as well as the Development

Officer of the Rubber Board. However, in spite of information of the damage suffered by

the petitioner, the respondent Board did not return the expenses incurred by the

petitioner for the rubber stems in question and hence the petitioner filed a complaint

claiming the cost of the rubber stems with interest @  15% and Rs.500/- as

compensation. 

3.      On notice, the respondent-OP contested the complaint. It was submitted by the

OP that as per his own admission, the petitioner was not familiar with the cultivation of

the rubber and was ignorant about it.  It was submitted that except the petitioner, the

other 27 rubber farmers who had taken the rubber stems, there was no complaint from

them.  Regarding the allegation that the rubber stems were not of good quality, it was

contended that the complaint in question was lodged only after one year and no expert

inspected his cultivation or any report was filed by him regarding cultivation.  It was also

submitted by the OP that the petitioner being ignorant about the rubber plantation, he

did not take proper care of the purchased stems and they were not planted in the pits

having necessary depth and size.  It was also stated by the OP that the pits were

waterlogged and hence the stems did not sprout.  Denying any deficiency on its part,

the respondent prayed for dismissal of the complaint.  The District Forum vide its order

dated 02.11.2011 in Complaint No.247/1993 partly allowed the complaint by directing

the respondent to return Rs.617.50 to the petitioner and to pay Rs.2,000/- as

compensation along with costs of Rs.300/- within one month from the date of the

order.  Not satisfied with the order of the District Forum, the petitioner carried the matter

to the State Commission by filing an appeal for additional compensation.  As stated

above, First Appeal of the petitioner was dismissed by the State Commission vide its

impugned order which is now under challenge through the present revision petition. 

 4.      We have heard the petitioner who has appeared in person.

 5.      It is to be noted that initially the complaint was filed by the petitioner on

19.04.1993 before the District Forum claiming the cost of rubber stems (which was

Rs.617.50) with interest @ 15% and Rs.500/- as compensation.  However, later on

when in the first round of litigation before the State Commission the matter was

remanded by the State Commission for fresh disposal after giving opportunity to both

the parties to adduce evidence on the disputed issue whether the stems supplied were

defective, the petitioner filed an amendment application dated 07.08.2008 for amending

the complaint for loss of production of Rs.49,549.50.  On remand, though the

amendment application was allowed by the District Forum, a compensation only of

Rs.2,000/- besides the return of the cost of the rubber stems amounting to Rs.617.50

along with litigation cost of Rs.300/- were allowed by the order dated 02.11.2011 by the

District Forum (as indicated above).  We find that the State Commission while upholding

the said order of the District Forum and dismissing the appeal of the petitioner has

recorded the following reasons in support of the impugned order:-

“7.   The counsel for the respondent submitted that the rubber stems were given to the farmers at Government subsidized rate by the Rubber Board. The plants were of good quality and it does not carry any warranty for the plants as the growth of the plants differ due to the cultivation and climatic conditions.  He also submitted that the growth of the plants depends on natural situation and also based on the proper nursing of the plant. The facts being so, it is not proper for the Forum below to fasten any liability on the opposite party, who are only a mediator. It is also argued that the Forum below ought to have dismissed the complaint in limine as the complaint is not sustainable. Submitting that there is absolutely no deficiency in service on the part of the opposite parties, the learned counsel argued that the complainant was not a traditional rubber planter and in his complaint itself he conceded that he was unaware of the plantation of the rubber stems. It is also pointed out that he approached the opposite party 3 months after planting the stems and by that time the sprouts were damaged. Further the respondent was provided with 190 plants in subsidized rate again in the next year. The additional claim made by the complainant was only after the case was remanded from the State Commission to adduce evidence for the opposite party.  The amendment petition was filed only after 7 years. The counsel submitted that the additional claim has no legal stand at the stage of remand as the claim was barred by limitation and there cannot be any claim on the ground that the petitioner planted Koodathai in the same place. The additional claim is only an imaginary loss of production which is not supported with any substantiating evidence. There is no case for the appellant that he had produced any expert opinion regarding the loss of rubber stems.

  

8.   On an appreciation of the arguments advanced by the appellant and the learned counsel for the respondent and also on going through the records we are of the view that the appellant/complainant could not substantiate proper evidence to show the loss of production that would have incurred in the rubber plantation for the 1 year. Merely giving the details in the publication and the market value could not be considered as the criteria for the assessment of loss of production of the rubber stems that would have grown and had assured yield in the future. The absence of any scientific

criteria for the assessment of loss of production, we are not in a position to consider the claim of the compensation to the complainant. As there is no appeal preferred by the opposite party/respondent we are not disturbing the order passed by the Forum below and uphold the order.

     In the result, appeal is dismissed.  Parties are to suffer their respective costs.”

 

6.      We agree with the view taken by the State Commission and in the given facts and

circumstances, we do not see any reason to interfere with the order of the State

Commission.  Consequently, the revision petition stands dismissed at the threshold with

no order as to costs.

Sd/-

……………….……………

                                                       (AJIT BHARIHOKE J.)

                                                      PRESIDING MEMBER

                                                                             Sd/-

  ……………….……………

                                                       (SURESH CHANDRA)

bs                                                                          MEMBER

 

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI

 

          FIRST APPEAL NO. 665 OF 2007

(Against the order dated 13.09.2007 in Complaint Case No. 80/2000(Hry)/RBT No.

121/2007 of the State Consumer Disputes Redressal Commission, U.T. Chandigarh)

 

1.  Branch Manager Life Insurance Corporation of India Branch 11U, Plot No. 8, Sector-11 Mathura Road, Faridabad

 2.  Senior Divisional Manager Life Insurance Corporation of India Divisional Office-II Jeevan Pragati, Plot No.6 District Centre, Laxmi Nagar Delhi Through Assistant Secretary Life Insurance Corporation of India Northern Zonal Office Jeevan Bharti, Connaught Circus New Delhi

                                                           …      Appellants

  Versus

Laxman Swaroop S/o Raja Ram C/o M/s Goel Electronics Main Bazaar Old Faridabad

                                                    …      Respondent

 

BEFORE:

          HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

 

For Appellants                   :   Mr. Ashok Kashyap, Advocate

For Respondent                :   Mr. Narender S. Yadav, Advocate with

                                                Mr. A. Anandan, Advocate

 

Pronounced on 11 th   January, 2013

ORDER

PER VINEETA RAI, MEMBER 

1.      This appeal has been filed by Life Insurance Corporation of India and another

(hereinafter referred to as appellants) being aggrieved by the order of the State

Consumer Disputes Redressal Commission, U.T. Chandigarh (hereinafter referred to as

State Commission), which had allowed the complaint of Shri

Laxman Swaroop (respondent-complainant herein). 

FACTS : -

2.      In his complaint before the State Commission respondent-complainant had

contended that his wife Smt. Sunita Devi (hereinafter referred to as the life assured) had

taken a life insurance policy for an assured sum of Rs.3 Lakhs with the maturity date of

07.11.2027.  It was a double benefit accident policy and, therefore, as per the terms of

the policy in case of death of the life assured, respondent/complainant was to be paid

an additional sum equivalent to the sum assured under the policy, if the death was

caused solely and directly as a result of an accident.  It was further contended that

before issuing the insurance policy, thorough enquiries about the health of the life

assured had been made by the appellant/Insurance Company and she was also

examined by its doctors and found to be in good health.  On 15.01.1998 the life assured

fell down from the staircase in her own house and sustained serious and multiple

injuries, including head injuries.  She was immediately taken to City Hospital and

Maternity Home, Fariabad, where from she was referred to Dr. Puneet Mittal,

Orthopedic Surgeon, Faridabad on the same day.  She, however, died three days later

i.e. on 18.01.1998 due to the above serious injuries received by her as a result of her

falling down from the staircase.  After the death of his wife, respondent/complainant

visited the office of the appellant-Insurance Company and informed it about the same

and being a nominee of the life assured filed the necessary claim supported by relevant

documents.  However, even though all the required formalities were completed, the

appellant-Insurance Company repudiated the claim vide its letter dated 02.11.1998 by

leveling false allegations that the life assured was suffering from Koch’s Chest

(Tuberculosis) for over one year and she had consulted a medical practitioner for

treatment and this important material information was suppressed while taking the

insurance policy and, therefore, the appellant-Insurance Company was fully justified in

repudiating the claim.  Being aggrieved by the repudiation of the claim both on account

of the death of his wife as also non-payment of the additional sum as per the double

benefit accident clause, respondent-complainant filed a complaint before the State

Commission alleging deficiency in service and requested that the appellant-Insurance

Company be directed to pay the claim amount of Rs.6 Lakhs under the life insurance

policy taken by the life assured Smt. Sunita Devi since it was a double benefit accident

policy along with interest @ 18% per annum from the date of her death till the date of

actual payment to the respondent-complainant and also Rs.1 Lakh as damages and

Rs.11,000/- as litigation cost.

3.      Appellant-Insurance Company on being served filed written statement refuting

these charges. It was contended that the contract of insurance being one of

‘uberrima fides’ i.e. contract of utmost good faith, the life assured was legally bound to

disclose all material facts, including the status of her health, which she failed to do.  On

the other hand, as per information available from the City Hospital And Maternity Home,

Faridabad dated 29.04.1997, it was clearly established that the life assured had been

admitted in that hospital for medical complaints, which included Koch’s Chest i.e.

Tuberculosis. Therefore, appellant-Insurance Company was fully justified in repudiating

this claim as per conditions of the insurance policy.  Apart from this, it was further

submitted that her death was not caused because of any injuries that she sustained

when she fell down from the staircase, as contended by respondent-complainant,

because as per the medical records these injuries were of minor nature and could not

have caused her death.  Therefore, the claim was rightly repudiated.

4.      The State Commission after hearing both the parties and on the basis of evidence

filed before it allowed the complaint by concluding that the appellants-Insurance

Company has not been able to conclusively prove that the life assured was suffering

from Koch’s Chest (Tuberculosis) and that she had suppressed this material fact.  The

State Commission also concluded that the terms and conditions of the policy were not

brought to the notice of the life assured and in the absence of doing so it cannot be held

that the policy was void and that the life assured had withheld certain material

information regarding her health.  The State Commission, therefore, directed the

appellant-Insurance Company to pay the respondent-complainant Rs.6 Lakhs under the

insurance policy with interest @ 9% per annum after three months of the death of the

life assured i.e. 18.04.1998 till payment.  Sum of Rs.5000/- was also awarded as

compensation.  Being aggrieved by this order, this first appeal has been filed. 

5.      Learned counsel for both the parties made oral submissions. 

6.      Learned counsel for the appellant-Insurance Company stated that the State

Commission erred in not taking cognizance of the important documentary evidence filed

before it, namely, the admission file of the City Hospital and Maternity Home, Faridabad

dated 29.04.1997, wherein it was clearly stated that the life assured had been suffering

from Koch’s Chest (Tuberculosis) and was on ATT for over one year.  This amounted to

suppression of material facts and by withholding this information, the contract based on

utmost good faith was clearly breached.  Apart from this, from the medical report of

Dr. Puneet Mittal, the orthopedic surgeon, who treated the life assured after her fall, it is

clear that the injuries caused were to the phalanx, little finger and shoulder.   There was

no mention of any serious injury, including head injury.  She was given

syrup Crilinctus and was advised review after one week.  Clearly, these injuries were

not serious enough to have caused her death.  Under the circumstances, the claim

under the double benefit accident policy was justifiably repudiated.

7.      Learned counsel for the respondent-complainant on the other hand stated that the

State Commission has rightly concluded that there was no credible evidence to confirm

that the life assured suffered from Tuberculosis and the admission file from the City

Hospital and Maternity Home, Faridabad could not be relied on since it did not have any

signatures and was not supported by any evidence or affidavit, in this respect.  It was

again contended that admittedly the life assured had fallen accidentally on 15.01.1998

and died within three days of the same.  Thus, there was clearly a nexus between her

accidental fall and her death and, therefore, there was no justification in the repudiation

of the claim under the double benefit accident policy.

8.      We have heard learned counsel for the parties.  We agree with the view taken by

the State Commission that the appellants-Insurance Company was not able to produce

any credible evidence to prove that the life assured was suffering from Koch’s Chest

disease prior to her having taken the insurance policy. Production of a document to this

effect does not amount to proving the same and in this case mere production of an

admission file, whose authenticity has not been verified/confirmed, is not adequate

proof of any pre-existing disease.  However, we find force in the contention of the

appellant-Insurance Company that from the documentary evidence produced by the

respondent-complainant i.e. the medical report from Dr. Puneet Mittal, the orthopedic

surgeon, who treated the life assured after her fall, does not indicate any serious injury

which could have caused her death.  There was no mention whatsoever of any

head injury nor was she advised hospitalization which could have been necessary had

she sustained any major injury.  Only minor injuries to the phalanx, little finger and

shoulder were mentioned in the report and respondent-complainant has not been able

to produce any evidence including the post mortem report to support his statement that

his wife died because of a serious head injury. 

9.      Keeping in view the above facts, we are unable to uphold the order of the State

Commission directing the appellant-Insurance Company to pay the respondent-

complainant the entire amount of Rs.6 Lakhs under the double benefit accident policy

and set aside the same.  However, since the life assured had admittedly died during the

validity of the policy, the respondent-complainant is entitled to Rs.3 Lakhs being the

amount for which the life was insured. 

10.    In view of these facts, appellant-Insurance Company is directed to pay the

respondent-complainant Rs.3 Lakhs with interest @ 9% per annum from the date of

repudiation of the claim till its payment as also litigation cost of Rs.5000/-. 

11.    The appeal stands disposed of in the above terms.    

  Sd/-(ASHOK BHAN, J.)

PRESIDENT

 

 

Sd/-

(VINEETA RAI)

MEMBER Mukesh           

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI

 

FIRST APPEAL NO. 196 OF 2011(From the order dated 20.12.2010 in CC No. C.C. No.03/24 of the Maharashtra State

Consumer Disputes Redressal Commission, Mumbai)

Shri Ashok Kumar Sharma Plot No.73,Sector 17, Koper Khairane, Navi Mumbai 400 709 Through Power of Attorney Holder of Shri Sanjiv H. Sharma, Plot No. 73, Sector 17, Koper Khairane, Navi Mumbai 400709

                                         …         Complainant/Appellant

         Versus

Ghanshyam Hemadev Res. at Last Apartment, 8th floor, 11-G, Mehta Road, Opera House, Mumbai 400007

M/s. Megha Properties Developers Pvt. Ltd. C/335, Big Splash Turbhe Road, Vashi Sector 17, Navi Mumbai 400 705, Mahartashtra

                                               …    Opp. Parties/Respondents

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA, MEMBER

 

          For the Appellant   : Mr. Sunil K. Kalra & Mr. Vikram Gola, Advocates

          For the Respondents: Ms. Surekha Raman, Advocate

 

PRONOUNCED ON 11 th   January, 2013

 

O R D E R 

MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER 

          This appeal has been filed by the complainant/Appellant against the impugned

order dated 20.12.2010 passed by the Maharashtra State Consumer

Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in C.C. No.

CC/03/24 – Ashok Kumar Sharma Vs. Ghanshyam Hemadev & Anr. by which complaint

was dismissed.

 

2.       Brief facts of the case are that the complainant booked Shop No. 2 with the

opposite party and made payment of Rs.7,46,182/- from time to time, but still

possession has not been handed over to the complainant, hence, filed complaint for

directions to the opposite party to hand over peaceful and vacant possession of Shop

No. 2 or in the alternative another shop of the same size along with prayer for awarding

interest, compensation, cost, etc.  Learned State Commission vide impugned order

dismissed the complaint on the ground that after termination of contract there exists no

relationship between the parties as the ‘consumer’ and ‘service provider’ and complaint

is also time barred. 

 3.       Heard the learned Counsel for the parties and perused record.  

 4.       Learned Counsel for the appellant argued that as occupancy certificate has been

issued in 2005, cause of action continued upto 2005 and complaint filed in 2003 is well

within limitation and learned State Commission has committed error in dismissing

complaint on the ground of limitation, hence, appeal may be accepted and order of

State Commission may be set aside.  On the other hand, learned Counsel for the

respondent argued that contract stood cancelled vide letter dated 11.12.1998 and

further vide letter dated 14.12.1998 complainant asked for refund of deposited amount

along with interest, hence, complaint filed in 2003 is clearly time barred and learned

State Commission has not committed any error in dismissing complaint on the ground of

limitation.

 

4.       Perusal of record reveals that complainant booked Shop No. 2 with the opposite

party and made some payment. Ex.‘A’ reveals that complainant always made payments

with delay and Rs.5,68,822/- remained outstanding against him upto 10.11.1998.  It is

admitted case of the parties that opposite party issued last and final reminder in

December, 1998 and asked complainant to deposit outstanding amount before

5.12.1998. It was also mentioned in reminder that in case he fails to deposit the

outstanding amount, the allotment shall stand cancelled without any further notice.

Complainant vide letter dated 14.12.1998 requested the opposite party to refund

Rs.7,46,182/- with 24% p.a. interest within 15 days failing which the complainant shall

take appropriate proceedings.  This notice was again replied by the opposite party vide

letter dated 9.1.1999 in which complainant was directed to make all outstanding

payments within 10 days failing which shop will finally stand cancelled without any

further reference.  In reply to this letter again the complainant vide letter dated

19.2.1999 asked opposite party to comply with the directions mentioned in letter dated

14.12.1998. These documents reveal that complainant failed to make payment as

agreed between the parties and opposite party failed to construct and give possession

of shop to the complainants, allotment stood cancelled in December, 1998 which was

reaffirmed in January, 1999 and as the complaint was filed in 2003, it is clearly time

barred and learned State Commission has not committed any error in dismissing

complaint being time barred.

 

5.       Learned Counsel for the appellant placed reliance on (2008) 7 SCC 585 – DLF Universal Ltd. Vs. Ekta   Seth and   Anr . in which allotment was cancelled due to non-

payment of money but the Apex Court in exercise of powers under Article 142 directed

the builder to return 50% of the forfeited amount to the allottee and further observed that

this direction may not be treated as precedent.  This citation does not help to the

complainant at all on the ground of limitation.  He also placed reliance on JT 2008 (10)

SC 34 – V.N. Bharat Vs. D.D.A. &   Anr . in which allotment was restored as show cause

notice was never received by the allottee and DDA cancelled the allotment. This citation

also does not help to the complainant because in the case in hand complainant admits

receipt of notice given by opposite party and has prayed for refund of money with

interest but has not taken appropriate steps within time and in such circumstances

complaint being clearly barred by limitation has rightly been dismissed by the learned

State Commission.

 

6.       Consequently, appeal filed by the appellant against the respondent is dismissed

with no order as to costs.                                                                                                    Sd/-

..……………………………

( K.S. CHAUDHARI, J)

PRESIDING MEMBER 

 

                                                                                                                        Sd/-

..……………………………

( SURESH CHANDRA )

MEMBER k

 

 

 

 

 

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI

REVISION PETITION NO.3990 OF 2011(From the order dated 5.10.2011 in First Appeal No.102/2010 of the

Andhra Pradesh State Consumer Disputes Redressal Commission, Circuit Bench at Tirupathi)

 Mudivarthi Radha Krishna S/o Raghavender Rao D.No. 27-2-56, Balaji Nagar, Nellore

…  Petitioner

Versus

The Branch Manager, Andhra Bank Plot No.15, Ward No.21, Balajinagar, Nellore Distt. Nellore

                               …  Respondent BEFORE:                                                       

HON’BLE MR. K.S. CHAUDHARI, PRESIDING MEMBERHON’BLE MR. SURESH CHANDRA, MEMBER

 

For the Petitioner                  :   Mr. C.P. Suresh, Advocate

PRONOUNCED ON: 13 TH   JANUARY,     2013

ORDER

PER SURESH CHANDRA, MEMBER

This revision petition has been filed by the petitioner, who is the original

complainant, against the order dated 5.10.2011 passed by the Andhra Pradesh State

Consumer Disputes Redressal Commission, Circuit Bench Tirupathi (‘State

Commission’ for short) by which the State Commission allowed the appeal filed by the

respondent/opposite party challenging the order dated 20.11.2009 passed by the

District Consumer Disputes Redressal Forum, Nellore by which the District Forum had

partly allowed the complaint of the petitioner and directed the respondent to pay

Rs.50,000/- to the complainant alongwith interest @ 9% p.a. from the date of filing of

the complaint. Vide its impugned order the State Commission the State Commission set

aside the order of the District Forum and dismissed the complaint with cost computed at

Rs.2,000/- payable by the petitioner. It is in these circumstances, that the present

revision petition has been filed.

2.       We have heard Mr. C.P. Suresh, Advocate appearing for the petitioner and

perused the record.

3.       The only point for consideration before us in this case is as to whether the

respondent Bank committed any deficiency in service in the collection of

the cheque deposited by the petitioner with it. It is not under dispute that the petitioner

presented the cheque in question dated 20.6.2007 for Rs.50,000/- with the respondent

Bank on 17.12.2007. The cheque was valid upto 20.12.2007 and it was an

outstation cheque drawn on Allahabad Bank, Hyderabad. The State Commission while

reversing the finding of the District Forum held that if there was any delay, it was the

complainant who was guilty of delay in presentation of cheque just three days prior to

the expiry of the cheque. More so, when it was an outstation cheque, he ought to have

presented the same well in advance to enable the OP Bank to collect the amount. The

complainant cannot present the cheque at the 11th hour and then complain that there

was delay which would constitute deficiency in service. In addition to this, the State

Commission has also recorded the following reason in support of the impugned order: -“We may also state that the complaint for the reasons not

known did not implead Allahabad Bank, Himayatnagar, Hyderabad as a party which had returned the cheque on the ground that it was stale.  Appellant could prove by irrefutable documentary evidence on the day when the complainant had presented the cheque it has sent on the very same day for collection of amount to Hyderabad.  Subsequent events were not in the hands of appellant bank in order to find out nor any deficiency in service attributable to Allahabad Bank at Hyderabad.  Importantly, he has suppressed the document which viz. , cheque return memo, obviously he was afraid that entire case falls two ground.  Considering the circumstances, we are unable to fix liability on the appellant bank nor we can say that there was deficiency in service on its part.  The complainant is guilty of his own acts by presenting the chequejust three days before expiry.  We do not subscribe to the view expressed by the Distt. Forum in this regard.”

 

4.       We agree with the view taken by the State Commission. Admittedly only three

days’ time was left before the expiry of the cheque which was an outstation cheque,

when it was presented by the petitioner before the respondent Bank. The petitioner

should have known that he himself was to be blamed for such extraordinary delay in

presentation of thischeque and as such he had subjected himself to grave risk and if the

validity period expired before the cheque could reach the payee bank which was at

Hyderabad, the petitioner himself is to be blamed for this delay. The respondent Bank

could not be held responsible for the same since it had dispatched the cheque well on

time after its presentation for collection. Regarding the non-joinder of the payee

Allahabad Bank, Hyderabad with a view to prove the allegation regarding the delay on

the part of the respondent Bank, learned counsel submitted that only an oral request

was made to this effect before the District Forum and as such it was not possible to

produce any formal order of the District Forum regarding refusal to accept such request.

We are not convinced with the explanation. The District Forum apparently did not

appreciate the factual position properly while holding the respondent Bank deficient in

service. In the circumstances, we do not find any reason to interfere with the impugned

order which is based on the undisputed facts and the correct legal position.

5.       Consequently, the revision petition fails. There shall be no order as to cost.…………………………..

(K.S. CHAUDHARI)PRESIDING MEMBER

  

…………………………..(SURESH CHANDRA)

                  MEMBERRaj/

      

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO.   274 OF 2012 (From the order dated 24.05.2011 in Appeal No.2341/08 of the U.P. State Consumer

Disputes Redressal Commission, Lucknow)

 

U.P. State Industrial Development Corporation (UPSIDC) Having its Head Office, A-1/4, Lakhanpur, Post Box No.105, Kanpur , U.P. Through its Project Officer, Tronica City Administrative Office, Sector B-3, Tronica City, Ghaziabad (U.P.)

                       …        Petitioner/OP

                                       Versus

 Smt. Shyama Rani W/o Sh. Ajay Kumar, R/o 2205/4, Chuna Mandi, Paharganj, New Delhi

                                                    …    Respondent/Complainant

BEFORE

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

For the Petitioner : Mr. Rajesh Raina, Advocate

For the Respondent : Smt.Shyama Rani, In person

PRONOUNCED   ON     14 th   January,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER

          This revision petition has been filed by the petitioner against the impugned order

dated 24.5.2011 passed by the U.P. State Consumer

Disputes Redressal Commission, Lucknow (in short, ‘the State Commission’) in Appeal

No. 2341 of 2008  – Smt. Shyama Rani Vs. Uttar

Pradesh Rajya Audhyogik Vikas Nigam Ltd. by which order of District Forum was set

aside and complaint was allowed and petitioner/OP was directed to allot industrial plot

of 500 sq. mt. or smaller size to the complainant/OP.

2.       Brief facts of the case are that complainant applied for an industrial plot

measuring 500 sq. mt. and deposited a sum of Rs.1,22,500/- as the price of the

industrial plot with petitioner/opposite party.  Opposite party allotted plot of 600

sq. mt. instead of 500 sq. mt. and asked complainant to make payment of plot at

escalated rate i.e. at the rate of Rs.1150/- per sq. mt. instead of Rs.935/- per

sq. mt.  Complainant requested opposite party vide letter dated 17.1.2001 that due to

financial problem plot of smaller size measuring 450 sq. mt.may be allotted otherwise

plot be treated as surrendered.  Complainant again vide letter dated 19.2.2001

requested for allotment of plot measuring 450 sq. mt. otherwise cancel allotment and

refund money.  In pursuance to the aforesaid letters, opposite party refunded money as

allotment of smaller size of industrial plot was not possible.  Complainant again wrote a

letter in October, 2006 and submitted that smaller size of plot was available, but

intentionally complainant’s plot has been cancelled, hence, again requested to allot

either original plot of 600 sq. mt. or plot of 400 to 450 sq. mts. at current rate which

application was rejected vide letter dated 22.11.2006 by opposite party, hence,

complainant filed complaint before the District Forum.  Opposite party filed written

statement and submitted that complainant is not covered under the Consumer

Protection Act and further submitted that as per request of the complainant allotment

has been withdrawn and money has been refunded, hence, complaint may be

dismissed.  Learned District Forum vide its order dated 12.11.2008 dismissed complaint

against which this revision petition has been filed.

3.       Heard learned Counsel for the petitioner and respondent in person and perused

record.

4.       It is an admitted case that complainant applied for an industrial plot measuring

500 sq. mt and deposited money and opposite party allotted industrial plot measuring

600 sq. mt. This fact is not disputed that complainant vide letter dated 17.1.2001

requested for allotment of plot measuring 450 sq. mt. instead of 600 sq. mt. and in the

alternate requested for treating this allotment as surrendered.  Again vide letter dated

19.1.2001 complainant requested for allotment of plot measuring 450 sq. mt. instead of

600 sq. mt and further requested that either industrial plot of 450 sq. mt. be allotted or

allotment of 600 sq. mt. plot be cancelled and money may be refunded and in

pursuance to this letter money has been refunded to complainant by opposite party on

5.3.2001.

5.       Later on vide letter of October, 2006, complainant again requested for the

allotment of industrial plot of 600 sq. mt. or other plot of 400 to 450 sq. mt. at current

rate which was rejected by opposite party. 

6.       Learned Counsel for the petitioner submitted that as complainant had

surrendered the plot and money was refunded to him complainant does not fall within

the purview of consumer.  He further argued that as the plot was industrial, complainant

does not fall within the purview of Consumer Protection Act and further submitted that

complaint is time barred as money was refunded in 2001 whereas complaint has been

filed in 2007 and in such circumstance, learned State Commission has committed error

in allowing appeal and complaint, hence, revision petition may be accepted and order of

State Commission may be set aside.  On the other hand, learned respondent submitted

that petitioner has cheated with the respondent and has not allotted industrial plot of

similar size as requested though plots of smaller size were available and in such

circumstance order passed by learned State Commission is not in accordance with law ,

hence, revision petition may be dismissed.

7.       It is admitted case that complainant vide its two letters referred to above

surrendered industrial plot of 600 sq. mt and requested for refund of money and as

petitioner had already withdrawn allotment and refunded money in 2001, complainant

does not fall within the purview of C.P. Act.  As refund was made in 2001 and complaint

has been filed in 2007 on the ground of cheating, etc., complaint is clearly time barred

and no application under section 24A has been filed along with the complaint and in

such circumstances, as complaint being time barred could not have been entertained by

the District Forum and learned State Commission has committed error in allowing time

barred complaint.

8.       Complainant/respondent was allotted industrial plot.  Complainant has nowhere

mentioned in the complaint that complainant prayed for allotment of industrial plot for

earning her livelihood by means of self-employment and in such circumstances,

complainant does not fall within the purview of consumer under Section 2 (d) of the C.P.

Act and on this count also complaint was liable to be dismissed and learned State

Commission has committed error in allowing complaint.

9.       Consequently, revision petition filed by the petitioner against the respondent is

allowed and impugned order dated 24.5.2011 passed by learned State Commission is

set aside and order of District Forum is upheld. There shall be no order as to costs.                                                                         ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER 

 

..……………Sd/-………………

( K.S. CHAUDHARI, J)

 MEMBERk

 

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.1348 OF 2012(From the order dated 07.12.2011 in First Appeal Nos.1437 & 1438 of 2011 of the

Karnataka State Consumer Disputes Redressal Commission, Bangalore) 

Smt. Ganga Patil W/o Mallikarjun Patil, R/o Hebbal, Tq. Chittapur, District Gulbarga

…  PetitionerVersus

1.    The Executive Engineer (Electrical) O & M Division-II, GESCOM, Jewargi Under Bridge Road, District Gulbarga

 2.    The Assistant Executive (Electrical) O & M Sub-Division, GESCOM, Post Kalgi, Tq.

Chittapur, District Gulbarga                                                  …  Respondents

 

REVISION PETITION NO.1349 OF 2012(From the order dated 07.12.2011 in First Appeal Nos.1437 & 1438 of 2011 of the

Karnataka State Consumer Disputes Redressal Commission, Bangalore)

 Shri Prabhakar Patil S/o Bashanth Rao Patil R/o Bebbal, Tq. Chittapur, District Gulbarga

…  PetitionerVersus

1.    The Executive Engineer (Electrical) O & M Division-II, GESCOM, Jewargi Under Bridge Road, District Gulbarga

 2.    The Assistant Executive (Electrical) O & M Sub-Division, GESCOM, Post Kalgi, Tq.

Chittapur, District Gulbarga                                                  …  Respondents

 BEFORE:                                                       

HON’BLE MR. K.S. CHAUDHARI, PRESIDING MEMBERHON’BLE MR. SURESH CHANDRA, MEMBER

 

For the Petitioner                  :   Ms. Kiran Suri, Advocate

PRONOUNCED ON: 14 th     JANUARY,     2013

ORDER

PER SURESH CHANDRA, MEMBERSince both these revision petitions have been filed by the petitioners against a

common order passed on 7th December, 2011 by the Karnataka State Consumer

Disputes Redressal Commission, Bangalore (‘State Commission’ for short) by which the

State Commission had dismissed the two appeals filed by the two petitioners, these

petitions are being taken up together and disposed of by this common order.

2.       The factual matrix of the two cases which have similar facts are like this.

Petitioner in R.P. No.1348/2012, Ganga Patil, had a pair of bullocks being used by him

as an agriculturist. Through his servant he sent the bullocks for grazing. On 3.10.2004,

while passing through the village path at about 11.00 a.m., the bullocks got electrocuted

due to the fall of live electric wire and died on the spot. Immediately a complaint was

lodged with the police which conducted Mahazar and post-mortem. Alleging deficiency

in service on the part of the respondents, the petitioner filed a consumer complaint with

the District Forum Gulbarga. In the other revision petition No.1349/2012 also similar

incident took place with the bullocks of the other petitioner who were being taken for

grazing by the servant of the petitioner. He too sustained the loss on account of the

electrocution incident which caused the death of his bullocks. He lodged another similar

complaint with the District Forum.

3.       On notice, the OPs filed their written statement in which it was contended that the

incident had occurred due to the carelessness and negligence of the complainants. It

was further contended that the complainants are not consumers as defined under the

Consumer Protection Act and as such there was no relationship between the

complainants and the respondents. Since the claim made by the complainants was

exorbitant, the respondents, in all fairness, settled the compensation for Rs.5,000/- in

complaint filed by petitioner in R.P. No.1348/2012 and for Rs.2,000/- in the other

revision petition. Both the petitioners/complainants received the said compensation

without any protest. It was claimed that the compensation was towards full and final

settlement. Accordingly, the respondents/OPs prayed for dismissal of the complaints.

The District Forum vide its two separate orders in the two complaints passed on

31.3.2011 accepted the two complaints. In the complaint filed by the first petitioner,

Ganga Patil, the opposite parties/respondents were jointly and severally directed to pay

a sum of Rs.55,000/- to the complainant together with interest @ 9% p.a. from the date

of filing of the complaint towards loss on account of death of the bullocks and they were

also held liable to pay a sum of Rs.10,000/- towards compensation for mental agony

alongwith cost of Rs.2,000/- In the other complaint, the District Forum ordered the

opposite parties/respondents to jointly and severally pay a sum of Rs.28,000/- to the

complainant together with interest @ 9% p.a. from the date of filing of the complaint till

realization towards the loss on account of death of the bullocks besides awarding a

compensation of Rs.10,000/- for mental agony and Rs.2,000/- by way of cost of the

proceedings. Aggrieved by these orders passed by the District Forum, the

petitioner/complainants filed appeals before the State Commission for enhancement of

the compensation requesting for compensation of more than Rs.19 Lakhs. The State

Commission vide its common impugned order, dismissed the two appeals. In these

circumstances, the two petitioners have filed the present revision petitions reiterating

their request for enhancement of the compensation.

4.       We have heard Ms. Kiran Suri, Advocate for the petitioners and perused the

record. Learned counsel contended that the compensation awarded by the fora below

was too inadequate and was nowhere near the loss and the mental agony suffered by

the petitioners. In this context, she has drawn our attention to the calculations of loss of

income to the petitioners on account of non-availability of the bullocks which comes

to  several lakhs. In support of the amounts of  compensation claimed by the petitioners,

the counsel also drew our attention to the rates of different agricultural produce obtained

by the petitioners from the Agricultural Produce Marketing Committee, Gulbarga. She

further submitted that it was not correct to say that the fora below do not have power to

award adequate compensation. She further submitted that in the present cases, the

District Forum and the State Commission have failed to assess due compensation and

what they have awarded is not correct and hence she strongly pleaded for

enhancement in the amounts of compensation in the two petitions. In support of her

contentions, she relied on the judgments of the Apex Court in the cases of Lucknow Development Authority vs. M.K. Gupta (1994) 1 Supreme Court Cases 243 and National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy & Anr. (2012) 2 Supreme Court Cases 506.

5.       We have carefully considered the submissions made by learned counsel for the

petitioners in the light of the peculiar facts and circumstances of this case. Both the fora

below have held the respondents guilty of deficiency in service. The only question to be

considered is in respect of quantum of compensation for the deficiency in service. The

State Commission while dismissing the appeals for enhancement of the compensation

amounts has made the following observation: - 

“We have gone through the grounds urged in the appeal memo and the arguments advanced. There is no proof that the said bullocks cost so much as on that day. Complainants during the course of enquiry by police stated that each bullock was worth of Rs.25,000/-. Under such circumstances, the D.F. has thoroughly considered each and every aspect of the matter and rightly come to the conclusion that the complainants are entitled for compensation and awarded compensation of Rs.55,000/- as far as a pair of bullock is concerned and Rs.28,000/- compensation as far as one bullock is concerned. It has also awarded separate compensation as well as litigation cost and the interest. Bearing in mind the relief granted the D.F. we are of the considered opinion that the said award is proper in consonance with the monetary loss suffered by the complainant. As already observed by us complainants have failed to make out substantial grounds and reasons so as to enhance the said compensation. Appeals appear to be devoid of merit.

 6.       We agree with the view taken by the State Commission while upholding the

quantum of compensation awarded by the District Forum. The maximum amount which

the claimants could have prayed for would normally not exceed the price of the bullocks.

In the absence of any evidence to the contrary, the District Forum has gone by the

police report indicating the worth of the bullocks at Rs.25,000/- each and pegged the

value of each bullock at Rs.30,000/- and after deducting the amount of Rs.5,000/-

already paid by the OP, awarded Rs.55,000/- in the case of Ganga Patil’s complaint

where a pair of bullocks had died due to electrocution and Rs.28,000/- (after adjusting

Rs.2,000/-) in the case of Prabhakar Patil’s  complaint where one bullock was involved.

Besides this, the cost of the proceedings and compensation had also been awarded.

We consider this as a fair and just compensation in the given circumstances. It is not

understood as to why the petitioners, who now claim to have suffered losses worth

lakhs of rupees on account of the absence of these bullocks, did not replace them by

purchasing new bullocks which would have cost them only as much as the price of

bullocks rather than allegedly continuing to suffer financial losses over the period of

time.  We, therefore, do not find any merit in the claims put forth by the petitioners in

these revision petitions and they are liable for dismissal. During the course of her

submission, learned counsel for the petitioners pointed out that the petitioners had not

accepted the cheques of Rs.5,000/- and Rs.2,000/- respectively sent by the

respondents by way of compensation to settle the claims. However, the District Forum

while partly accepting the complaints of the two petitioners had deducted these amounts

from the amounts of award in each of the two complaints. In view of this, learned

counsel submitted that the two amounts  - Rs.5,000/- in the case of R.P. No.1348 of

2012 and Rs.2,000/- in the case of R.P. No.1349 of 2012 will have to be added to the

amounts awarded by the District Forum even if the impugned orders of the Fora below

are to be confirmed. We accept the submission made by learned counsel for the

petitioners subject to its verification by the District Forum.

7.       In view of the above, we confirm the impugned order and dispose of two revision

petitions in terms of the above directions. There shall be no order as to costs.                                                                   ………………Sd/-…………..

(K.S. CHAUDHARI)PRESIDING MEMBER

  

………………Sd/-…………..(SURESH CHANDRA)

                  MEMBERRaj/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

 

REVISION PETITION NO.2544OF 2011(From the order dated 03.05.2011  in  First Appeal No.A/10/1027 of the Maharashtra

State Consumer Disputes Redressal Commission, Mumbai)

 

Mr. Deepak Jayendra Mehata R/At no.5 B-3 Narendra Complex SP Road Dhar Khadi Cross Vaishali Nagar Dahisar (E) Mumbai Maharashtra.              

                                                                           ...... PETITIONER

           Versus

1. The Chairman HDFC Bank Ltd Retail Assets Division 3rd Floor Trade Star Building Opp. J B Nagar Andheri Kurla Road, Andheri (E) Mumbai Maharastra.

 2. The Branch Manager HDFC Bank Ltd. Retail Assets Division 3rd Floor Trade Star Building Opp. J B Nagar Andheri Kurla Raod Andheri (E) Maharashtra.

 3. The Manager/Director M/s OM Sai Motors Pvt. Ltd. Jyoti Plaza, S.V. Road, Kandivali (W), Mumbai-400067, Maharashtra.

                                            ....... RESPONDENTS

BEFORE:

HON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON'BLE  MR.SURESH CHANDRA,  MEMBER       

For the Petitioner         :    Ms. Jayshree Satpute, Advocate

 

For the Respondents  :    Mr.Rishab Raj Jain, Adv. for R1& R2

                                            Mrs. Bindu Jain, Adv. for R3

 PRONOUNCED ON: 14 th   January, 2013  

                                                ORDER

 

PER SURESH CHANDRA, MEMBER

          This revision petition has been filed against the order dated 03.05.2011 passed

by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (‘the

State Commission’, for short) by which the State Commission allowed the appeal of the

petitioner only against OP no.3/respondent no.3 and remitted the matter back to the

District Forum as against OP no.3 only and dropped the complaint against OPs no.1

and 2/respondent nos.1 and 2.  The impugned order reads as under:-

“(i)       Appeal is allowed only against Respondent/original Opponent No.3.

(ii)        Impugned order as against Respondent/Original Opponent Nos.1 &2 stands confirmed.

(iii)       The Consumer Complaint No.188/2008 is remitted back to the Forum as against Respondent/original Opponent no.3 only, in the light of the observations made in the body of the order.

(iv)       Both parties, i.e. Appellant/original Complainant and Respondent/original Opponent No.3 shall appear before the Forum on 03.06.2011.

(v)        The Forum shall give opportunity, if so desires by the Appellant/original Complainant to correct the description of original Opponent No.3.  If such application is made, that should be decided on merit after hearing Opponent no.3.

(vi)       The Forum shall also give proper opportunity to the parties before it, i.e. Complainant and Opponent No.3 to lead their respective evidence as per Provisions of Section 13(4) of the Consumer Protection Act, 1986 and thereafter them, settle the dispute according to law.

(vii)      In the given circumstances, both the parties in appeal shall bear their own costs.

(viii)     Appeal stands disposed of accordingly.”

 

2.      Briefly stated, it is the case of the petitioner, who was original complainant before

the District Forum, that he had purchased a Tata Indigo car in the month of August,

2005 from M/s Om Sai Motors Pvt. Ltd., Kandivali (W), Mumbai, respondent no.3

herein.   While an amount of Rs.1,40,000/- against the total purchase price of the car is

alleged to have been paid by the complainant-petitioner to the agent of respondent

no.3, he also applied for car loan of Rs.4,51,000/-  from the HDFC Bank Ltd. who are

respondents no.1 and 2 in this petition and were OPs in the same order before the

District Forum.  The loan amount sanctioned by the respondent bank to purchase the

said car  is alleged to have been directly released by the respondent bank to

respondent no.3.  It is the case of the petitioner that respondent no.3 failed to deliver the

possession of the vehicle purchased.  It is also alleged by the petitioner that instead of

making delivery of the said car to him, the respondent no.3 had given delivery thereof to

another person called ‘Deepak Devendra Mehta’.  Alleging deficiency in service on the

part of the respondent no.3/OP no.3, the petitioner filed a consumer complaint before

the District Forum in which the Chairman of the HDFC Bank was shown as OP no.1 and

the Branch Manager of the Bank was made as OP no.2  in addition to the

Manager/Director of M/s Om Sai Motors Pvt. Ltd. being included as OP No.3.   On

notice, OPs appeared before the District Forum.  The financial help provided by the

HDFC Bank for purchase of the car through a car loan was admitted by the HDFC Bank

but the respondent no.3 submitted that they had no dealing with the petitioner and they

had dealing with one Mr.Deepak Devendra Mehta to whom the car had been

delivered.  Vide its impugned order dated 31.07.2010, the District Forum came to the

conclusion that the facts of this case showed that this is not a complaint which can be

tried by a Consumer Forum in a summary trial under the Consumer Protection Act,

1986 and as such held that the complaint is not maintainable before it and that the

complainant should have preferred a Forum of conventional Court to thrash out the

complicated issues by appropriate legal proceedings.  Accordingly, the District Forum

dismissed the complaint.

3.      As stated above, vide its impugned order the State Commission remanded the

matter to the District Forum for giving an opportunity to the parties for leading evidence

and to settle the dispute according to law after hearing the parties.  Since the State

Commission, while remitting the matter back to the District Forum, dropped the

complaint against respondents no.1 and 2 who had been made OPs no.1 and 2 by the

complainant before the District Forum, the petitioner has now challenged this order

before us.

4.      We have heard Ms. Jayshree Satpute, Advocate for the petitioner, Mr. Rishab Raj

Jain, Advocate for the respondent no.1 and 2 and Mrs.Bindu Jain, Advocate for the

respondent no.3.

5.      It is contended by the learned counsel for the petitioner that the State Commission

has committed grave mistake in observing in its impugned order that the petitioner did

not have any grievance against the respondent bank and hence reached the conclusion

that the respondent no.1 and 2 were impleaded unnecessarily as the opponents.  She

submitted that the District Forum without reaching a final conclusion in respect of the

complaint in question had simply observed that in view of the complicated nature of

issue involved the same was not maintainable before the Consumer Forum and hence

dismissed the complaint by its order by which the petitioner was directed to approach a

Civil Court competent to take cognizance of the dispute.  It is the contention of the

learned counsel that since the State Commission has not looked into the merits of the

case, it would be wrong on its part to dismiss the complaint against therespondents no.1

and 2/OPs no.1 and 2.  In any case, it was not correct on the part of the State

Commission to hold that since the consumer dispute was in respect of non- delivery of

the vehicle by the dealer , i.e., the respondent no.3 to the petitioner/complainant, the

presence of the bank/financial institution could be dispensed with.  She submitted that

once the evidence is led by the concerned parties, the presence of the respondent

bank who was included as opposite party would be absolutely essential.  She, therefore,

pleaded that the impugned order of the State Commission be set aside and the matter

be remanded back to the State Commission for deciding it on merits by retaining

the respondents no.1 and 2 as parties to the case.

6.      Learned counsel for the respondent no.3 has also submitted that the matter be

remanded to the State Commission and not to the District Forum.

7.      Learned counsel for the respondent bank has reiterated that the grievance of the

complainant is mainly against the persons, namely,  Mr. Vilas P. Sawant, Mr. Sandeep

Kandalkar and Mr. Ajay Sawant who, according to the complainant had induced him to

deal with them and in that process he was cheated by them. He submitted that the role

of the bank was limited to grant of a car loan and recovery thereof from the petitioner

and as such the order of the State Commission dismissing the complaint against the

respondent bank  is correct and needs to be confirmed.

8.      We have carefully considered the rival contentions raised before us. The limited

issue which has arisen for our consideration in this case is as to whether the impugned

order of the State Commission dropping the names of respondents no.1 and 2 thereby

dismissing the complaint against these two respondents while remitting the matter for a

fresh trial to the District Forum is correct in the eye of law.  It is not in dispute that the

petitioner had taken a car loan from the respondent bank.  It is also not in dispute that

the respondent bank was getting the payment of EMIs for some time in repayment of

the said loan.  According to the petitioner, the respondent bank released the amount of

car loan directly to the dealer.  We do not see any denial to this aspect, which in any

case is presumed to be true as per the general practice in which the car loan usually is

released to the dealer of the car (which in this case would be respondent no.3).  This

being the situation, the respondent bank needs to specifically point out and produce

documentary evidence in support thereof as to how and to whom the cheque on

account of the car loan was released by the respondent bank.  Such documents would

invariably indicate the correct name of the person on whose behalf the amount was

being released by the respondent bank to the dealer.  This aspect has not been dealt

with by the State Commission and there is no observation in this regard.  In the

circumstances, when the State Commission thought it appropriate to remand the matter

to the District Forum for  a fresh trial after considering the evidence to be adduced by

the respondent no.3 and the petitioner in support of their contentions and take a

decision on merits after hearing the parties, it is not understood as to how the presence

of the respondent bank could be dispensed with by dismissing the complaint against the

bank. In that view of the matter and to this extent, the impugned order of the State

Commission cannot be sustained in the eye of law being not based on any acceptable

evidence before it. 

9.      It is noted from the revision petition that the District Forum had dismissed the

complaint as not being maintainable under the Consumer Protection Act simply

because in its opinion it felt that the dispute involved complicated questions of law and

facts.  It is further seen from paras 3 (II), (III) and (IV) of the revision petition that the

respondent bank failed to produce certain documents as per the direction given by the

District Forum and as such the District Forum did not reach any conclusion based on

evidence or merits of the case but only on its impression that because of the nature of

the dispute and complications involved, the complaint was not maintainable.  In the

circumstances, when the petitioner has  alleged non- delivery of the vehicle by the

respondent no.3 to him for which the loan amount had been released directly by the

respondent bank to the respondent no.3-dealer, it is necessary that the respondent

bank clarifies this position in respect of the person on whose behalf  the car loan

cheque was released to the dealer/respondent no.3 before he could be held liable for

deficiency in service in respect of non delivery of the car to the petitioner.  In other

words, the presence of the respondent bank is absolutely essential for reaching any

conclusion or taking a final view on the complaint in question. The observations of the

State Commission to the effect that the main grievance of the petitioner being against

the respondent no.3, the respondent bank has no role to play is incorrect and not based

on proper appreciation of the submissions made in the complaint and the written

statement of the parties.

10.    In view of the above, we do not find any fault with the order of the State

Commission to remand the matter back to the District Forum for recording evidence and

hearing the parties afresh but we do not agree with the impugned order regarding the

dismissal of the complaint against the respondents no.1 and 2 thereby exempting them

from appearing and leading the evidence before the District Forum.  We, therefore,

accept the revision petition partly and set aside the impugned order to the extent that it

dismisses the complaint against the respondent no.1 and 2.  Rest of the impugned

order is upheld. Consequently, the District Forum is directed to give proper opportunity

to the petitioner and all the respondents who were OPs before the District Forum to lead

their respective evidence and thereafter settle the dispute after hearing the parties in

accordance with the provisions of law.  We make it clear that the petitioner and the

respondents would be at liberty to lead their evidence with reference to the allegations

of deficiency in service made in the original complaint and the District Forum shall take

a decision on merits without being influenced by any of the observations made by the

State Commission in its impugned order.

11.    The revision petition thus stands partly allowed and disposed of in terms of the

aforesaid directions with the parties bearing their own costs.

……………Sd/-….……………

                                                       (K. S. CHAUDHARI, J.)

                                                      PRESIDING MEMBER

 

  …………Sd/-…….……………

                                                       (SURESH CHANDRA)

bs                                                                          MEMBER

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   237 OF 2009

(From the order dated 23.10.2008 in Appeal No. 1472/2008

of Madhya Pradesh State Consumer Disputes Redressal Commission)

THE NEW INDIA ASSURANCE CO. LTD. Through its Regional Manager, 87 – Mahatma Gandhi Fort, Mumbai – 400 001 (Maharashtra)

...........Petitioner(s)

Versus

1.Chandra Kumar Chatrath R/o 130 Dusheera Maidan Ujjain (MP)

2. Raksha T.P.A. PVT. LTD. 15/5, Escort Corporate Centre, Faridabad, Haryana

...........Respondent(s)

 BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA, MEMBER

 For the Petitioner(s) : Mr. Mohan Babu Aggarwal, Advocate

For the Respondent No.1 : Mr. Pankaj Kumar, Advocate

For the Resp. No.2 : Ms. Sugandha Taneja, Advocate

Exparte

PRONOUNCED   ON :     14 th   JAN. 2013  

O R D E R 

PER SURESH CHANDRA, MEMBER 

        Delay of eight days in filing the present revision petition is condoned.

 2.    We have heard Mr. Mohan Babu Aggarwal, Advocate for the petitioner and Mr.

Pankaj Kumar, Advocate for the respondent no. 1. Respondent no. 2 remained exparte. 

3.     Briefly stated, the facts of the case are that the father of respondent no. 1 was

insured with the petitioner insurance company for a sum of Rs.2 lakh under a medi-

claim policy and he had undergone a treatment for which he  spent

Rs.1,63,109/-.  Against the claim of Rs.1,63,109/- made by the respondent – 1 /

complainant, the petitioner insurance company paid Rs.20,000/- only on the plea that

treatment in question was not a surgical treatment and for such non-surgical treatment

only a total sum of Rs.20,000/- could be paid or reimbursed as hospitalisation

expenses.  Not satisfied with the decision taken by the insurance company in restricting

the claim to Rs.20,000/-, the petitioner knocked the door of the consumer fora by filing a

complaint with the District Forum.  The District Forum vide its order dated 28.03.2008

held that the procedure of putting the tubes in the nose is not a surgical operation and

as such it non-suited the claim of the petitioner / complainant and dismissed the

complaint.  Aggrieved by this order of the District Forum, the respondent no. 1 went in

appeal before the Madhya Pradesh State Consumer Disputes Redressal Commission,

Bhopal (State Commission ‘for short’) which vide its order dated 23.10.2008 allowed the

appeal and directed the petitioner insurance company to pay the respondent no. 1 /

complainant a sum of Rs.1,63,109/- minus the amount already paid, within two months

from the date of the order.  In spite of service of the notice by the State Commission,

none appeared on behalf of the petitioner insurance company and the other

opposite party, hence they were proceeded exparte by the State Commission.  It is

against this order of the State Commission that the petitioner / insurance company and

OP No. 2 has filed the present revision petition. 

4.     The only issue which has arisen for our consideration in this case is as to whether

the treatment undertaken by the father of the respondent no. 1 was a surgical treatment

or not?  It is seen from the impugned order that the State Commission has allowed the

appeal and the claim of the complainant on the basis of a certificate of Dr. Mukesh Jain,

MS (ENT) to the effect that the “tracheostomy” performed requires making a hole in the

respiratory passage and, therefore, it is a surgical procedure.  Since the doubt raised by

the insurance company about the nature of the treatment taken by the assured had

been resolved with the certificate of the Doctor, the State Commission accepted the

prayer of the complainant and allowed the entire amount spent for the treatment in

terms of the medi-claim policy.  In this context, learned counsel for the petitioner drew

our attention to the definition of “surgical operation”, contained in para 63 of the

Annexure I, which forms part of the policy, in question.  According to the counsel, the

procedure in question would not amount to surgical operation as per the definition

contained in the terms and conditions of the medi-claim policy.  In view of this, learned

counsel pleaded that the impugned order accepting the full claim was bad in law and

deserves to be set aside. 

5.     We have considered the contentions raised by learned counsel for the petitioner.  It

is to be noted that in spite of notice sent by the State Commission, the petitioner

insurance company chose to remain absent and hence proceeded exparte.  Petitioner

has not placed any material to support its claim about non-receipt of the notice from the

State Commission.  It is also seen that the petitioner has not placed any rebuttal in

respect of the certificate issued by Dr. Mukesh Jain, who is ENT Surgeon and hence an

expert, on the basis of which the State Commission has passed the impugned order.   In

view of these facts, no fault could be found with the impugned order.  Consequently, we

dismiss this revision petition but with no order as to costs. 

..……………Sd/-………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER 

 

..…………Sd/-…………………

(SURESH CHANDRA)

MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION   PETITION     NO. 1614 OF 2012 (From the Order dated 17.11.2011 in Appeal No. 269/2011 of 

Maharashtra State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad)

 

 Shri Vijay Maruti Dhandwade R/o Behind Hotel Maujam Professor Colony ChowkSavedi, Ahmednagar Maharashtra

… Pettiioner 

Versus 

Shilpa Prabhakar Rawas R/o Balikashram Road Shinde Mala, AhmednagarMaharashtra                                                  

Respondent BEFORE:                   HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

       HON’BLE MR. SURESH CHANDRA, MEMBER 

 For the Petitioner                           :              Mr. Yatin M. Jagtap, Advocate   Pronounced   on :       14 th     January, 2013

PER SURESH CHANDRA, MEMBER

There is a delay of 18 days in filing this revision petition. For the reasons

submitted in the application filed by the petitioner for condonation of delay, the delay is

condoned.

2.         This revision petition challenges the order dated 17.11.2011 passed by the State

Consumer Disputes Redressal Commission, Mumbai, Circuit Bench Aurangabad (‘State

Commission’ for short) by which the State Commission dismissed appeal No.269 of

2011 in complaint case No.151 of 2010 filed by the petitioner and upheld the order

dated 7.4.2011 passed by the District Consumer Forum, Ahmednagar.

3.         Briefly stated, petitioner herein was the opposite party before the District Forum

and the respondent was the original complainant. The complainant/respondent agreed

to purchase one family unit No.201 in the building called “Vyankatesh Heights” from the

petitioner. An agreement was entered into between the petitioner and the respondent on

10.3.2006 for a total consideration of Rs.3,80,000/-. While an amount of Rs.80,000/-

was paid by the respondent to the petitioner on 10.3.2006, for the remaining amount,

the respondent availed of loan from the HDFC Bank,Ahmednagar. The HDFC Bank is

stated to have sanctioned the loan on 16.3.2006 and in pursuance thereof issued

cheque of Rs.1,75,000/- and later another cheque of Rs.1,00,000/- on 12.5.2006. Both

the amounts were received by the petitioner. Thereafter, the respondent is stated to

have paid Rs.20,000/- on 1.6.2006 and an amount of Rs.9500/- on 9.6.2006 thereby

completing the payment of entire consideration in respect of the flat. Even after receipt

of the total consideration, the petitioner did not handover the possession of the flat

and kept  certain works incomplete like light fitting, colouring, plumbing, etc. In view of

this, the respondent filed a consumer complaint before the District Forum. The petitioner

appeared before the District Forum and resisted the complaint. He denied any

transaction for the purchase of said flat. However, he admitted having received an

amount of Rs.1,75,000/- on 16.3.2006 and Rs.1,00,000/- on 12.5.2006. It was submitted

by the petitioner before the District Forum that since the husband of the respondent and

the petitioner were friends, nominal transaction of sale and purchase was entered into.

According to the petitioner, the amount had been received by him was returned to the

husband of the respondent as he was facing financial crisis. He, therefore, submitted

that there was no relationship of consumer and service provider between the

respondent and the petitioner.

4.         After hearing both the parties, the District Forum partly allowed the complaint

and directed the petitioner/opposite party to execute the sale deed in favour of the

respondent/complainant in respect of the said flat No.201 in “Vyankatesh Heights” and

also directed the petitioner to pay Rs.25,000/- by way of compensation and Rs.10,000/-

for mental agony. Aggrieved by this order of the District Forum, the petitioner filed an

appeal against the order before the State Commission which was dismissed by the

State Commission by the impugned order upholding the order of the District Forum. In

these circumstances, the petitioner has now filed the present revision petition aggrieved

by the impugned order.

5.         We have heard Mr. Yatin M. Jagtap, Advocate, counsel for the petitioner and

perused the record. The main contention of the learned counsel is that only a nominal

agreement of sale was entered into because the husband of the respondent and the

petitioner were friends but the amounts received in that respect were returned by the

petitioner to the husband of the complainant because he was facing financial crisis. In

view of this, it was submitted by learned counsel for the petitioner that there was no

question of executing any sale deed. He submitted that the State Commission erred in

passing the impugned order without proper appreciation of the factual matrix and based

on erroneous assumption of facts and hence the impugned order is contrary to the

provisions of law and the material available on record and hence the same deserves to

be set aside.

 6.         We have considered the submissions made by learned counsel for the

petitioner. We find that both the Fora below have returned their concurrent finding in

favour of the respondent/complainant based on the facts of the case supported by the

evidence placed before them. While upholding the order of the District Forum and

dismissing the appeal of the petitioner, the State Commission has recorded the

following reasons in paras 6 and 7 of the impugned order:-

“6. Adv. Patil submitted that, agreement to sale executed by appellant in favour of complainant. According to said price of flat i.e. Rs. 3,80,000/- was paid by the complainant herself and through HDFC Bank. Appellant received said consideration. Proof in that respect was produced by the complainant before the Forum. Allegations of appellant that, said amount was returned to the husband of complainant is not proved by the appellant. No documentary evidence to show that said amount was returned and sale transaction was nominal is produced by the appellant. District Forum rightly considered all the

facts while allowing the complaint.7. We heard both counsels and perused the record. Appeal decided at admission stage with consent of both counsels. It is an admitted fact that, agreement to sale was entered into between the complainant and appellant. It is also admitted fact that consideration amount of Rs.3,80,000/- was paid by the complainant to appellant. The contention of appellant that, said amount was returned to the husband of complainant is not proved by any documentary evidence by the appellant. In fact, legal notices were issued by complainant to the appellant for execution of sale deed and possession of flat. If husband of complainant would have been friend of the appellant legal notice would not have been issued for the possession of flat. The documents which were produced by the appellant to show that husband of complainant got the deposit amount from the appellant were not about the disputed flat. When it is admitted by appellant that, total consideration of the flat No.201 was received by appellant the contention that said amount was returned to the husband of complainant as he was facing financial crises cannot be believed. The agreement to sale was executed between the parties and accordingly total consideration was paid by the complainant. In our view, District Forum rightly considered all the facts while allowing the complaint. We do not want to interfere the order of Forum.”

 7.         We agree with the concurrent finding of facts returned by the Fora below and do

not see any ground to interfere with the same. Keeping in view the ratio laid down by

the Apex Court in the case of Rubi   (Chandra)   Dutta   Vs. M/s United India Insurance Co. Ltd. [(2011) 11 SCC 269], this revision petition is liable to be dismissed and it is

accordingly dismissed at the threshold with no order as to costs.

  ..……………Sd/-…..……….

     (K.S. CHAUDHARI, J.)                                                                                                             PRESIDING

MEMBER  

            ….…………Sd/-……………                                                                            (SURESH CHANDRA)

                                                                                                                                     MEMBER

SS/

 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

          FIRST APPEAL NO. 270 OF 2006

(Against the order dated 16.03.2006 in C.D. No. 41 of 2001 of the A.P. State Consumer

Disputes Redressal Commission, Hyderabad)

 

Yashoda Super Speciality Hospital Represented by its Managing Partner Somajiguda, Raj Bhavan Road Hyderabad, A.P.

                                                …      Appellant

  Versus

1. Smt. A. Subbalakshmi W/o Late Shri G. Ramakistaiah R/o H.No. 12-12-76, Ravindra Nagar Sethaphalmandi Secundrabad-500061 (A.P.)

 2.  New India Assurance Co. Ltd. Divisional Office 5-2-174/2, Madan Mohan Buildings R.P. Road Secundrabad, A.P.

                                            …      Respondents

BEFORE:

          HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

 For Appellants                   :   Mr. Y. Raja Gopala Rao, Advocate with

                                                Mr. Hitendra Nath Rath, Advocate

 For Respondent                :   NEMO for R-1

                                                Mr. Salil Paul, Advocate for R-2

 Pronounced on 15 th   January, 2013

ORDER

PER VINEETA RAI, MEMBER 

1.      This appeal has been filed by Yashoda Super Speciality Hospital, Hyderabad

(hereinafter referred to as the appellant-hospital) being aggrieved by the order of the

A.P. State Consumer Disputes Redressal Commission, Hyderabad (hereinafter referred

to as the State Commission), which partially allowed the complaint of medical

negligence and deficiency in service filed against them by Smt. A. Subbalakshmi,

respondent no.1 herein and original complainant before the State Commission. 

FACTS :-

2.      In her complaint before the State Commission, respondent no.1 had contended

that her late husband (hereinafter referred to as the patient), who was a Senior

Accountant in the Accountant General’s office, had a minor fall from his bed while

sleeping and approached the Central Government Health Scheme (CGHS) dispensary

with a complaint of muscular pain on the right side near the shoulder.  The medical

examination revealed slight tenderness and swelling on the right shoulder blade region,

for which he was advised to consult an orthopedic surgeon.  Patient thereafter got

admitted in the appellant-hospital and the medical examination conducted by the

orthopedic surgeon revealed that there was no orthopedic defect but there was some

congestion on the nerve shoulder region which was fixed with collar and sling so as not

to disturb the position.  Respondent no.1 noted that on 18.04.2000 the eyes of her

husband were yellowish, which was indicative of jaundice and she informed the

concerned doctors.  It was only two days later that a blood test was conducted, which

indicated that moderate jaundice was prevalent.  According to respondent no.1, around

5.00 p.m. on 20.04.2000 her husband complained of breathlessness and a feeling of

uneasiness and when she informed the doctor and nurses on duty, they were very

casual and administered an injection to the patient late in the evening but his condition

deteriorated.  It was, therefore, decided to shift him to the Intensive Care Unit but there

was delay in doing so because no stretcher or wheelchair was available and ultimately

he was taken to the Intensive Care Unit at 8.50 p.m. and expired there at 10.00

p.m.  According to respondent no.1, if her husband had been given proper and prompt

medical treatment and necessary precautionary measures taken, including immediate

treatment for jaundice, during his stay in the appellant-hospital, his premature death

could have been avoided.  Being aggrieved she issued a legal notice on grounds of

medical negligence to appellant-hospital as well as the treating doctor claiming a sum of

Rs.10,50,000/- as compensation but to no avail. Therefore, respondent no.1 filed a

complaint before the State Commission requesting that appellant-hospital and the

treating doctor be jointly and severally directed to pay her Rs.10,60,000/- as

compensation for mental pain and torture, medical expenses, legal & miscellaneous

expenses and interest @ 24% per annum from 14.08.2000.   

3.      Appellant-hospital on being served filed a written statement denying the above

allegations.  It was contended that as soon as the patient approached appellant-

hospital with complaints of pain on the shoulder etc. on 14.04.2000, he was immediately

examined by a consultant orthopedic surgeon, who confirmed that there was no fracture

but only an injury to the soft tissue around the shoulder.  He was admitted into the

hospital and was treated for the same and a cuff and collar was put on him and he was

advised rest.  Since the patient had diabetes, medicines were also prescribed for the

same and special care was taken to check the sugar level as also blood pressure

etc.  As a result of the medical treatment given to him, the pain on the right shoulder

considerably subsided and it was planned to discharge this patient on

21.04.2000.  However, on 19.04.2000 when the patient developed yellowish colouration

of the eyes, he was examined by Dr. M.V. Rao, a Physician, and a Liver Function Test

conducted confirmed the jaundice, for which he was given due treatment. On

20.04.2000, when the patient complained of breathlessness and sweating, he was

immediately shifted to the Acute Medical Care Unit and a cardiologist attended to him,

wherein he was diagnosed with acute myocardial infarction, for which he was given

treatment, including cardio pulmonary resuscitation.  He was also put on the ventilator

but despite the best efforts, he died at 10.00 p.m.  The death of the patient occurred due

to the sudden myocardial infarction, which is quite common in diabetic patients and,

therefore, his death could not be attributed to any medical negligence on the part of the

appellant-hospital/doctors. Therefore, the complaint made by respondent no.1 of

medical negligence and deficiency in service against appellant-hospital was baseless.

4.      The State Commission, after hearing the parties and on the basis of evidence filed

before it, concluded that so far as the orthopedic problem of the patient was concerned,

he was treated with reasonable care and caution and, therefore, no case of medical

negligence against respondent no.2 i.e. the specialist doctor was established and also

consequently respondent no.3, the New India Assurance Co., with which he was

insured.  However, the State Commission found appellant-hospital guilty of not taking

due care and giving prompt treatment to the patient.  In this connection, the relevant

part of the State Commission’s observation is as under :-

“…  There are many unanswered questions with respect to cause of death whether it can be Pulmonary embolism or Myocardial Infraction which only the opposite parties can answer but they have not chosen to do so either in their counter, affidavits, discharge summary or case sheet, but only came up with this plea of Myocardial Infraction during arguments.  Therefore, we are of the considered opinion that though opposite party No.2 treated the patient with reasonable care and caution so far as orthopaedic problem is concerned, we are of the view that opposite party No.1 hospital did not take due care and precaution by giving prompt treatment to the patient.  The patient joined the hospital on 14-4-2000 complaining of right shoulder pain and was put on a cuff and colar and was admittedly to be discharged on 18-4-2000.  On 20-4-2000 he developed breathlessness and at 5.00 p.m. as per the complainant’s version and at 7.45 p.m., as per the version of the opposite parties.  It is pertinent to note that there is a visible correction in the timings on page – 26 of the case sheet which has not been initialed or signed.  Post mortem report could probably have confirmed the factors leading to the cause of death, however no post mortem was insisted on by the complainant or his relatives and therefore, the compensation being awarded is a nominal amount.  It is the case of the complainant that the doctors and nursing staff were not alert enough immediately when the breathlessness developed.  The patient was already admitted in the hospital for shoulder pain five days prior to the attack of breathlessness and the burden lies on the hospital to prove that they were alert enough and attended to him immediately. …” 

5.      The State Commission, therefore, directed appellant-hospital to pay a sum of

Rs.2,00,000/- with interest @ 9% per annum from the date of filing of complaint i.e.

14.03.2001 till the date of realization within six weeks, failing which the said sum would

attract interest @ 9% per annum together with costs of Rs.5000/-.  Hence, the present

first appeal.

6.      Learned counsel for both the parties made oral submissions.

7.      Learned counsel for the appellant-hospital stated that the State Commission erred

in concluding that it was guilty of medical negligence and deficiency in service.  In fact,

immediately on patient’s admission, all the necessary diagnostic tests like x-ray, ECG

etc. were conducted and there was no indication of any heart problem since the ECG

was normal.  However, since the patient was a known case of diabetes, he was

prescribed medication to control his sugar levels. His injury was also properly treated by

a specialist orthopedic doctor and thereafter his condition continued to be carefully

monitored and had improved.  On 20.04.2000, around 8.00 p.m. (and not 5.00 p.m. as

contended by respondent no.1) when the patient developed breathlessness and

sweating, which was a sudden complication, he was immediately referred to a

cardiologist, who attended to him within ten minutes.  Thereafter, he was shifted to the

Intensive Care Unit within twenty minutes and put on a ventilator around 8.30 p.m.  The

relatives of the patient were also informed about his critical medical condition and poor

prognosis.  A team of doctors put in their best efforts to save the life of the patient but

unfortunately failed to do so.  The sudden heart attack was neither due to negligence of

the doctors or administration of any wrong medicine.  Thus, the appellant-hospital

cannot be held to be guilty for the unfortunate death, which occurred despite the best

possible treatment as per standard procedures.

8.      Counsel for respondent no.1 on the other hand stated that the appellant-hospital

took the plea that the patient died of a myocardial infarction only at the argument stage

before the State Commission.  This fact was not mentioned either in the death report or

in the medical history of the patient filed before the State Commission.  There was no

evidence that an ECG was conducted and the appellant’s explanation that the ECG and

its findings had faded away with the passage of time lacks credibility.  The patient was

under the treatment and care of the appellant-hospital for six days and because they did

not properly monitor his condition, it deteriorated with the onset of jaundice and other

complications for which the State Commission rightly held it responsible for medical

negligence and deficiency in service.

9.      We have heard learned counsel for both parties and have carefully gone through

the evidence on record.  The fact that the patient was admitted after a fall in his sleep to

the appellant-hospital, wherein he was treated by opposite party no.2, is not in

dispute.  It is further a fact that six days after his admission in the hospital, patient

developed breathlessness and severe uneasiness and he was examined by a

cardiologist and shifted to the Intensive Care Unit, where he passed away.  The

appellant-hospital has sought to explain the cause of his death as a result of sudden

myocardial infarction.  However, we note (as also observed by the State Commission)

that this fact has not been recorded either in the case history or death certificate of the

patient.  Further, appellant-hospital’s contention that an earlier ECG conducted on the

patient did not indicate any abnormality is also not available on the record.  When

specifically asked by us if there was any proof of the same, learned counsel for the

appellant-hospital stated that it was very much a part of the case history and related

papers filed before the State Commission but unfortunately the ECG image as also the

observations recorded on it were not visible since these had faded away.  We agree

with the State Commission that this is not a plausible explanation.  We further agree

with the finding of the State Commission that the appellant-hospital has not been able to

satisfactorily explain as to what caused the death of the patient, which leaves many

unanswered questions, including whether he was given prompt and adequate treatment

by the appellant-hospital.

10.    In view of these facts, we see no reason to interfere with the order of the State

Commission and uphold the same.  This first appeal stands dismissed. The appellant-

hospital is directed to pay respondent no.1 a sum of Rs.2,00,000/- with interest @ 9%

per annum from the date of filing of the complaint i.e. 14.03.2001 till payment along with

litigation cost of Rs.5000/-.        

 Sd/-

(ASHOK BHAN, J.)

PRESIDENT

 

Sd/-

(VINEETA RAI)

MEMBER Mukesh      

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 (FIRST APPEAL NO.387 OF 2007)

(From the order dated 19.03.2007 in CC No.127/1999of the State Commission, Gujarat)

 Kersi F.Dalal                                                                  ……Appellant(s) 

Versus Dr.Janak K.Mehta & Ors.                                             ……Respondent(s)

 

BEFORE:HON’BLE MR.JUSTICE ASHOK BHAN, PRESIDENTHON’BLE MRS.VINEETA RAI, MEMBER

 For the Appellant (s)             :        Mr.S.J.Mehta, Advocate For the Respondent (s)          :        Dr.Sushil Kr.Gupta, Advocate for R-1

and R-2.                                                         Pronounced on 15 th   January, 2013

 ORDER

 PER VINEETA RAI, MEMBER 

          This revision petition has been filed by Kersi F. Dalal(hereinafter referred to as

the ‘Appellant’) being aggrieved by the order of the State Consumer Disputes Redressal

Commission, Gujarat(hereinafter referred to as the ‘State Commission’) which had

dismissed his complaint of medical negligence filed against Dr.Janak K.Mehta and

Dr.Jayesh J.Shah, Respondents No.1 and 2 herein.  The National Insurance Co.Ltd. is

Respondent No.3 in this case.

          In his complaint before the State Commission, Appellant, a practicing Advocate,

who had also earlier been treated by Respondent No.1, consulted him on 07.01.1997

with complaints of feeling feverish with abdominal pain.  He was given a course of

antibiotic injections for 4 days but instead of getting relief, his fever rose to 104 FH and

his stomach became very distended and he also started vomiting.  In spite of this,

Respondent No.1 without trying to find out the cause of his multiple medical complaints,

did not advise any pathological or other examination e.g. X-ray, stool examination

etc.  and instead he referred the Appellant to Respondent No.2 who conducted a

sonography twice but could not get a good image.  During this procedure, two big straps

were tightly tied across appellant’s stomach which caused him extreme distress.  As a

result of the defective sonography, Appellant’s ailments could not be properly diagnosed

and the infection spread into the stomach.   Respondent No.1 instead of treating him for

this condition, asked him to go to Patwa Nursing Home to an unknown doctor.  It was

only another senior surgeon whom the Appellant consulted in the late evening, who

advised him to immediately get admitted into the hospital and be put on a saline drip

prior to an emergency operation for appendicitis.  The saline drip which was fixed by

Respondent No.1 was done so carelessly that Appellant’s biceps and forearm became

swollen upto three times.  It was with difficulty that the Appellant managed to get a ticket

to Pune and got admission in Jehangir Nursing Home where he underwent a 3½ hours

surgery and had to stay there for 4 months undergoing extreme mental agony as also

substantial expenditure on boarding, lodging as also on medical treatment.  Besides,

Appellant’s profession also suffered due to his inability to regularly attend to his

clients.  Being aggrieved by the treatment and medical negligence on the part of

Respondents No.1 and 2, Appellant filed a complaint before the State Commission and

requested that they be directed to jointly and severally pay him compensation of Rs.10

lakhs with interest @ 18% per annum, Rs.30,000/- as costs and any other damages as

considered appropriate. 

          On being served, Respondents filed written statements before the State

Commission challenging the allegations made against them by the

Appellant. Respondent No.1 contended that he had a Degree in Medicine and is fully

qualified as a General Medical Practitioner who had been practicing medicine for

several decades and had been the family doctor of the Appellant for about 2

decades.  On 07.09.1997 on a request from the Appellant, he visited him and noted that

he had complaints of watery diarrhea, vomiting and mild pain on the left side of the

lower abdomen.  Respondent No.1 thoroughly examined him and gave him two

injections i.e. Gentamicin and Ranitin and also prescribed oral medication.  The

Appellant’s general condition was satisfactory.  His blood pressure was 140-90 and

there was no distension of the abdomen and his fever was 99 Deg.FH.  He was advised

liquid diet.  In the evening, Appellant phoned the Respondent No.1 and requested that

since he does not want to take oral drugs, he may be given injection and a drip.  On

08.09.1997 when Respondent No.1 again examined appellant, he had only mild fever

and pain and no diarrhea.  However, he was put on an IV drip slowly for one hour and

after examination his pulse rate, blood pressure etc. was found to be normal and his

general condition continued to be good.  In this way, he was given conservative

treatment to manage his minor medical complaints.  On 10.09.1997, Appellant

continued to complain of vague pain and Respondent No.1, therefore, advised him to

consult Dr. Rahul Thakore, a senior surgeon, for further investigations.  Dr.Thakore

gave Appellant an appointment for 5.15 pm and Respondent No.1 also accompanied

the Appellant to Dr.Thakore who after examining him advised the sonography and X-ray

to be done at the clinic of Respondent No.2.  The sonography was satisfactorily

conducted and after seeing the two reports, Dr.Thakore immediately advised the

Appellant to get admitted in Patwa Nursing Home where surgery may be

required.  However, the Appellant did not get himself admitted there and instead

requested the Respondent No.1 to give him a drip which was done.  There was

however no swelling on the Appellant’s forearm or biceps.  It was contended that

Respondent No.1 had medically treated the Appellant as per the standard medical

practice and used his best professional skills.  It was Appellant who did not heed the

medical advice for which Respondent No.1 cannot be held responsible.  Respondent

No.2 also denied that he had conducted a defective sonography.  He contended that he

is a qualified Radiologist and Sonologist and has a post-graduate degree in

Radiology.  He had used the best available equipment for conducting the sonography

and the same was satisfactorily done.  It was specifically denied that any flaps or straps

were tied on the abdomen of the Appellant.  In fact, when the sonography of the

abdomen is performed there cannot be any obstruction between the machine and the

skin of the patient and therefore, the question of putting any obstruction like a flap did

not arise.  The State Commission after hearing the parties and on the basis of the

evidence produced before it, dismissed the complaint by observing as under:“There is nothing oral or written on record or evidence to suggest that

treatment given to Mr.Dalal was incomplete, inappropriate or wrong.  Mere say of Mr.Dalal (in absence of any documentary or oral evidence) cannot be accepted as truth.  Mr.Dalal had ample time and opportunity to bring forth the evidence to substantiate the claim, but sadly complainant has failed to avail it.   As far as opponent No.1 Dr.Mehta is concerned, though Mr.Dalal was not serious (as indicated by records showing his physical condition and vital data) Dr.Mehta showed indulgence to take him to Dr.Thakore for consultation.  Dr.Shah for sonography and put I/V drip at home.  These acts in itself will suggest that he exercised due care expected of him.  As far as treatment in form of medicine is concerned nothing indicates that the medicines given were wrong or inappropriate done o that medicine had harmed Mr.Dalal.  As far as Dr.Thakore’s management is concerned, Mr.Dalal chose to ignore his advice to get hospitalized for treatment and chose to go to Pune of his own sweet will for further treatment.  We do not have records of medical management of said treatment at Pune on record……………..Dr.Shah against whom allegations of poor quality of x-ray & sonography are not proved; Mr.Dalal has not only not produced the film nor an opinion on that film.  Dr.Shah also rules out as physical impossibility to put straps tightly or for that matter even to put the strap as then sonography will not be possible, but in fact he did sonography further suggesting non-putting of strap.  Mr.Dalal has not shown us how Dr.Shah’s report are wrong or his machineries were outdated, not even challenged the same in written statement of Dr.Shah or his evidence.”

 

          Hence, the present First Appeal. 

          Learned Counsel for both parties made oral submissions.  Learned Counsel for

Appellant reiterated the medical negligence and deficiency in service on the part of both

Respondents No.1 and 2 and stated that the main complaint against Respondent No.1

was that without conducting any diagnostic tests including a stool examination, he gave

him medical treatment which actually worsened his condition.  He also reiterated that

the sonography conducted by Respondent No.2 was not clear and undue agony and

pain was caused to him by putting straps on his distended abdomen during the

procedure which the State Commission failed to take note of.  It was also reiterated that

the patient actually suffered from appendicitis which could have been easily diagnosed

if he was given proper medical attention including a proper sonography.  Instead, a

wrong diagnosis was made and it was only at Pune when the Appellant’s condition

deteriorated that he was immediately detected with appendicitis and a surgery had to be

performed.  It was prayed that because of the mental agony and harassment as also the

financial hardship and loss caused to the Appellant, compensation of Rs.10 lakhs was

reasonable and justified.

          Learned Counsel for Respondent on the other hand stated that the clinical

condition of the Appellant was carefully assessed after due examination he was given

conservative treatment as warranted during the first 3 days.  Thereafter, when the

complaints persisted, Appellant was advised to consult a specialist surgeon and in fact

Respondent No.1 not only fixed the appointment but also accompanied him to the

surgeon who advised diagnostic tests including a sonography which was properly

conducted by Respondent No.2 who had a post-graduate degree in Pathology and was

fully qualified to conduct the same.  It was the Appellant who erred in rejecting the

medical advice to get himself admitted in the hospital and instead rushed to Pune for

further treatment.  There was, therefore, no deficiency in service on the part of the

Respondents.

          We have heard learned Counsel for both parties and have gone through the

evidence on record.  The fact that the Appellant consulted Respondent No.1 with

complaints related to his abdomen with nausea and related problems is not in

dispute.  It is also a fact that Respondent No.1 who was a qualified doctor after

examining the Appellant decided to treat him conservatively since the parameters

relating to his blood-pressure, temperature and the condition of the stomach was not

unduly abnormal.  There is nothing on record produced by the Appellant, on whom there

was onus to do so, to support his contentions that he had very high temperature and

other severe problems.  We further note that when the Appellant’s condition remained

the same with the lower abdominal pain continuing, he was immediately referred to a

specialist surgeon and then a qualified Radiologist for conducting the required

diagnostic tests which included sonography and X-ray.  Appellant has made certain

allegations against Respondent No.2/Radiologist pertaining to the quality of the

sonography conducted by him.  However, again there is nothing on record to support

this contention.  In fact, the sonography and diagnostic test reports were seen by a

specialist surgeon who advised hospitalization since there was a possibility of

surgery.  The Appellant, however, chose not to get admitted to the hospital and instead

went to Pune for treatment.  These facts have also been confirmed by the State

Commission as a first court of fact.

What constitutes medical negligence is now well established [Jacob Mathew v.

State of Punjab, (2005) 6 SCC 1] and essentially three principles are required to be

followed: (i) Whether the doctor in question possessed the medical skills expected of an

ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor

adopted the practice (of clinical observation diagnosis – including diagnostic tests and

treatment) in the case that would be adopted by such a doctor of ordinary skill in accord

with (at least) one of the responsible bodies of opinion of professional practitioners in

the field and (iii) whether the standards of skills/knowledge expected of the doctor,

according to the said body of medical opinion, were of the time when the events leading

to the allegation of medical negligence occurred and not of the time when the dispute

was being adjudicated.

Applying these principles to the present case, we see no reason to disagree with

the order of the State Commission, which had concluded that there was no deficiency in

service or medical negligence in the treatment of the appellant, which was done by well-

qualified doctors using their best professional judgment and skills to treat the patient

after conducting the necessary diagnostic and clinical tests.  The appellant has not been

able to produce any credible evidence, including documentary or expert evidence to

contradict or controvert these facts.  We, therefore, uphold the order of the State

Commission in toto and dismiss this first appeal.  No costs.

 Sd/-

(ASHOK BHAN J.)PRESIDENT

  

Sd/-(VINEETA RAI)

MEMBER /sks/   

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.     4924   OF     2012

 (Against the order dated 10.09.2012 in Revision Petition No. RP/11/40   

of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

M/s. Shree Constructions, Through its Partner- Mr. Umesh Raosaheb Pawar Patil Address at : 102, Ganga Prasad, Ghantali, Sainath Chowk, Ram Ganesh Gadkari Road Naupada, Thane (W)-400 602                                   ... Petitioner

Versus

1. Shree Residency CHS Ltd. Near Shankar Temple Old Mumbai-Pune Road Mumbra-400 612 2. Shri Namdev K. Patil, An adult, R/at Flat No. A/01, 3. Shri Harishchandra K. Patil, An adult, R/at Flat No. A/02, 4. Shri Narayan K. Patil, An adult, R/at Flat No. A/201, 5. Shri Dattatray K. Patil An adult, R/at Flat No. A/201 Nos. 2 to 5 are residents of Shree Residency CHS Ltd., Near Shankar Temple, Mumbra-400 612 Dist. Thane.                                                        ... Respondents 

BEFORE:

  HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER

  HON’BLE MR. VINAY KUMAR, MEMBER

 

       For the Petitioner :  Mr. Nagaraj Hoskeri, Advocate 

Pronounced   on :     16 th   January, 2013  

ORDER 

JUSTICE J. M. MALIK, PRESIDING MEMBER

1.      The present revision petition has been filed by the builder M/s Shree

Constructions-opposite party No. 1.  The facts of its case are these.  The agreement for

development of land was executed between the partners, i.e. petitioner-opposite party

No. 1- builder and the original land owners,

namely, Shri Namdev K.Patil, Shri Harishchandra K. Patil, Shri Narayan

K. Patil and Dattatray K. Patil, opposite parties 2 to 5, for land measuring 2098 sq.

yds. equivalent to 1754 sq.mts on 18.4.1986.  The conveyance deed was executed

between the opposite party No. 1 and opposite parties 2 to 5 in respect of above said

land on 13.2.1996.  The opposite party No. 1 started construction activities on the said

land and sold the land to the respective purchasers by agreement to sell during 2001-

2002.  On 14.2.2006, the society of the flat purchasers was formed and registered by

the petitioner in the name of Shree Residency CHS Limited. 

2.      The complainant had filed a complaint before the District Consumer Forum, Thane

against the petitioner and land owners for conveyance of the property. On. 7.3.2009, the

District Forum, Thane had passed the order and directed the petitioner-opposite party

No. 1 and the original land owners-opposite parties 2 to 5 jointly and severally to

execute the conveyance deed in favour of the society and also awarded cost and

compensation.  There is no confliction on the point that the said judgment has attained

finality.  The above judgment was not challenged by any of the parties.

3.      Thereafter, the complainant filed another application for execution of the above

said order.  The petitioner had complied with the monetary part of the order and shown

the document to the forum for its having power to convey the land measuring 2098 sq.

yards i.e. equivalent to 1754 sq. meters.  The District Forum directed the opposite

parties 1 to 5 to convey the land measuring 1754 sq. mts. in favour of the complainant-

society.  The State Commission, Mumbai has set aside the order passed by the District

Forum dated 24.11.2010.

4.      We have heard learned counsel for the petitioner-opposite party No. 1.  He argued

that by virtue of development agreement, the petitioner is empowered to convey the

property to the extent of 2098 sq. yd. i.e. 1754. Sq. mts.  The society has no authority or

power or right or title and interest to convey the property measuring 2200 sq. yards as

alleged by the society.  It is also pointed out that the order passed by

the Hon’ble District Forum on 7.3.2009 nowhere mentions regarding the area of the land

to be conveyed to the society.  The District Forum vide its order dated 24.11.2010 has

clarified the exact area to be conveyed to the society.

5.      This is noteworthy that the opposite party No. 1/petitioner did not appear before

the State Commission.  The complainant and respondents No. 2 to 5 were present.  On

their joint request, the case was remanded.  The State Commission also observed that

Section 25 clause III is not applicable to this case.  He opined that Section 27 of the

Consumer Protection Act, 1986 is applicable in this case.  It was ordered that the trial

court has not followed the procedure.  The learned State Commission observed:-“We find that since the forum did not follow the procedure prescribed, the direction given to execute the conveyance is per se illegal and, therefore, in light of the submission made by both the parties, it would be proper and just to set aside the impugned order dated 24.11.2010 and remand back the matter to consider the aspects referred earlier.  Hence, we hold accordingly and pass the following order:-

                                                ORDER                             Revision petition is allowed.                             Impugned order dated 24.11.2010 is set aside.Execution application bearing no. 12/2010 is remitted back to the forum in light of the observation made in the body of the order.

Both the parties shall appear before the forum on 03.10.2012.                             No order as to costs.”

 6.      The learned State Commission did not state that the opposite parties were

directed to execute the area to the extent of 1735 sq. mts.  or 2200 sq. mts. of

land.  This question was not decided by the State Commission.  It appears only

apprehension on the part of the petitioner because order dated 24.11.2010 has been

set aside.  The apprehension appears to be false.  This question certainly requires

evidence and investigation.  The State Commission has not decided this very

point.  This question is yet to be decided keeping in view all the facts and circumstances

of the case.  If the original order dated 7.3.2009 does not mention the area, it has to be

found out from the relevant documents viz. Agreement, area allotted to the flat owners

etc.  The learned forum under the circumstances correctly remanded the case before

the District Commission.  During the remand proceedings, the District Forum is directed

to decide the question raised by the State Commission and the area for which

conveyance deed is to be executed.  Both the parties have right to produce their

evidence. The question is kept open and will be decided by the District Forum after

hearing both the parties.

          The revision petition has no force and the same is therefore dismissed.………………Sd/-…..………..

     (J. M. MALIK, J)

   PRESIDING MEMBER

 

……………Sd/-….……………

                                                        (VINAY KUMAR)

                                                                            MEMBER

Naresh/reserved        

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   2106 OF 2008

(From the order dated 08.02.2008 in Appeal No. 367/2002

of Gujarat State Consumer Disputes Redressal Commission)

 

Parvatiben Bhimjibhai Rathod Resides at : Shiv Shakti Society-2; Plot No. 41, Bhavnagarpara: Bhavnagar                                               ……. Petitioner

Versus

 1.  Dr. Shivkumar Chandra Shekhar Resides at Bhajrangdas Hospital Panwadi; Bhavnagar

 2.  Trustee, Bhajrangdas Hospital Panwadi; Bhavnagar

                                               …. Respondents

REVISION PETITION NO.   2112 OF 2008

(From the order dated 08.02.2008 in Appeal No. 837/2006

of Gujarat State Consumer Disputes Redressal Commission)

Parvatiben Bhimjibhai Rathod Resides at : Shiv Shakti Society-2; Plot No. 41, Bhavnagarpara: Bhavnagar                                               ……. Petitioner

Versus

 1.  Dr. Shivkumar Chandra Shekhar Resides at Bhajrangdas Hospital Panwadi; Bhavnagar  

2.  Trustee, Bhajrangdas Hospital Panwadi; Bhavnagar

                                               …. Respondents

BEFORE

 

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

 

HON’BLE MR. SURESH CHANDRA, MEMBER

 

For the Petitioner(s)   Ms. Surekha Raman, Amicus Curiae

For the Respondent-1   Mr. Sumit Bhatia, Advocate

For Respondent-2   Mr. Nikhil Goel, Advocate

PRONOUNCED   ON :     16 th   JAN. 2013  

O R D E R 

PER SURESH CHANDRA, MEMBER 

          Both these revision petitions have been filed against the common order dated

08.02.2008 by which the Gujarat State Consumer Disputes Redressal Commission (for

short ‘the State Commission’) dismissed Appeal No. 837 / 2006 filed by the petitioner for

enhancement in the amount of award passed by the District Forum and accepted the

Appeal No. 367 / 2002 filed by the respondent no. 1 for setting aside the order of the

District Forum passed on 11.02.2002. They are being disposed off by this common

order.  

2.      Both the revision petitions have been filed by the original complainant and the

respondents in both these revision petitions were opposite parties 1 & 2 respectively

before the District Forum.  For the sake of convenience, the parties hereto have been

referred to as the complainant and the opposite parties.  

3.      Briefly stated, the complainant, who is a resident of Bhavnagar earns her

livelihood by engaging herself in miscellaneous labour work.  As she had to undergo a

cataract operation of left eye, she was admitted in the OP No. 2 hospital in which OP

No. 1 is an eye surgeon.  It is not in dispute that she paid the fee for her admission and

charges demanded by the hospital.  It is alleged by the complainant that there was

negligence on the part of the OP Doctor while administering the anaesthesia injection

into her eye which caused damage to it and even though she was rushed to Civil

Hospital, Ahemdabad by taxi,  theDoctor there informed her that due to serious mistake

of the OP Doctor, the damage to the eye of the complainant could not be

restored.  Alleging carelessness on the part of the OP Doctor while carrying out the

operation, the complainant knocked the doors of Consumer Fora by lodging a complaint

with the District Forum, Bhavnagar.  On notice, the Opposite Parties resisted the

complaint.  On appraisal of the issues and the evidence placed before it and after

hearing the parties, the District Forum vide its order dated 11.02.2002 accepted the

complaint and awarded an amount of Rs.25,000/- by way of compensation with interest

@12% p.a. from the date of complaint till its actual payment.  Aggrieved by this order,

the opposite parties challenged the same before the State Commission by filing appeal

for its dismissal.  The complainant also filed another appeal praying for enhancement in

the amount of the award.  The State Commission by its impugned order, as stated

above, accepted the appeal of the opposite parties and set aside the order of the

District Forum.  Accordingly, the appeal of the complainant for enhancement was also

dismissed by the impugned order. 

4.      We have heard Ms. Surekha Raman, Advocate who was appointed as Amicus to

assist this Commission on behalf of the petitioner / complainant and Mr.Sumit Bhatia,

Advocate for the respondent no. 1 and Mr. Nikhil Goel, Advocate for respondent no. 2.

We have also perused the record placed before us.  

5.      It was contended by learned Amicus that the facts of this case which are not in

dispute would indicate that sufficient care was not taken by the OP Doctor in carrying

out the surgery in question particularly while administering the anaesthesia

injection.  She submitted that looking at the status and background of the complainant

who was a petty labourer and a poor villager, it should have been kept in view by the

OP Doctor that adequate care was taken to avoid any likely mishap since it was a

delicate matter when the anaesthesia injection was to be administered into the eye of

the complainant.  Admittedly, not only once but in the second attempt also there was

shaking of the head and / or hand of the complainant when the injection was being

administered into the eye by the OP Doctor.  She submitted that as a professional

engaged in the surgery of the eyes, he should make sure that the hands and the head

were held by the attending staff present in the operation theatre, particularly when the

second attempt was made by OP Doctor for administering injection.  In the

circumstances, the negligence was writ large and no further expert opinion is required in

the matter to prove the negligence on the part of the Opposite Parties.  She further

submitted that looking to the overall facts and circumstances of this case, the District

Forum had rightly awarded compensation of Rs.25,000/- with interest in favour of the

complainant and the same should, at least, have been upheld by the State Commission

rather than dismissing the complaint altogether.  She, therefore, submitted that there is

a fair case for upholding the order of the District Forum by setting aside the impugned

order. 

6.      On the other hand, counsel for the OP Doctor has submitted that the damage to

the eye was caused on account of the mistake on the part of the complainant when she

did not follow the instructions given by the Doctor and moved her head and hand which

resulted in the damage to her eye.  He submitted that at worst, it could be regarded as a

case of contributory negligence for which OP Doctor could not be held liable for

compensation while discharging his professional functions to the best of his

capabilities.  He, therefore, submitted that there is no force in the revision petition and

the same is liable to be dismissed.  Learned counsel for the respondent no. 2 did not

have anything further to add in the matter. 

7.      We have considered the rival contentions.  Perusal of the O.T. notes and the

written statement filed by the OP before the District Forum confirm that there was

movement of head and hand both the times during the administration of anaesthesia

injection by the OP Doctor.  The District Forum in its order has observed that the

incident of disturbance during administration of anaesthesia injection took place thrice in

this case which indicates that the Doctor has not taken care in respect of what could

happen in such a situation because of general human nature / behaviour and the

incident which took place was uncalled for and improper.  In the given facts and

circumstances of this case, we agree with the view taken by the District Forum.  The

State Commission apparently erred while treating it as “an unfortunate accident” for

which it did not hold the OP Doctor as being negligent or deficient in service while

dismissing the complaint.  We are of the considered view that the finding returned by

the District Forum was fair and just and hence confirm the same except to the extent

that the interest @12% p.a. is on the higher side and hence in the given circumstances

we reduce the same to 6% p.a. from the date of the complaint, i.e., 2.08.1997 till its

actual payment. 8.      Revision Petitions are thus, partially accepted and disposed off in above terms.  There shall be no order as to costs.

 

..……………Sd/-………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER 

 

..……………Sd/-………………

(SURESH CHANDRA)

MEMBERRS/ 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO. 2031 OF 2012

(From the order dated 18.04.2012 in Appeal No. 477 of 2010

of Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench no. 3 Jaipur)

 Ankur Surana Son of Shri Mahendra Surana R/o Prop. Shri Surana ElectronicsKesar Gank Ajmer, Rajasthan

Petitioner 

Versus United India Insurance Co., Ltd. United House, 24 Whites Road Chennai 600 014Through Chairman  United India Insurance Co. Ltd. Regional Office Sahara Chambers Tonk RoadJaipur United India Insurance Co. Ltd Divisional Office Holagal Road, Ajmer

... Respondents 

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI     PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA                  MEMBER

 

For the Petitioner                 Mr Harsh Vardhan Surana, Advocate

 

PRONOUNCED ON :     16 th   JANUARY 2013  

 O R D E R

 

PER SURESH CHANDRA, MEMBER

 

        This revision petition has been filed by the petitioner who was the original

complainant against the order dated 18 th April 2012 passed by the State Consumer

Disputes Redressal Commission, Rajasthan, Circuit Bench no. 3 at Jaipur (in short, ‘the

State Commission’), by which the State Commission had allowed the appeal filed by

respondents against the order dated 22.02.2010 passed by the District Consumer

Disputes Redressal Forum, Ajmer (in short, ‘the District Forum) and set aside the order

of the District Forum.

2.     The factual matrix of this case are like that the petitioner had insured his godown

no. 644 with the insurance company of the respondents. The godown caught fire on

15.04.2007 and according to the petitioner he suffered a loss of Rs.25,23,552/-. The

insurance company got the investigation done through a surveyor and allowed the claim

of Rs.14,76,264/- and also made payment thereof to the petitioner. It is the case of the

petitioner that the surveyor did not treat the goods worth Rs.6,59,459/- belonging to the

petitioner but treating these goods to be of Surana Associates, a sister concern

company of the petitioner and rejected the same and stated that transferring the entire

goods had been made with an intention to make the claim. Accepting the plea made by

the petitioner, the District Forum vide its aforesaid order allowed the complaint and held

that the insurance company had not produced any evidence in addition to the report of

the surveyor and under these circumstances, it could not be admitted that the

complainant/petitioner had not purchased goods from the Surana Associates. The

Order of the District Forum read as under:

“19.   Consequently complaint of the appellant is allowed against non-applicant

insurance company and non-applicant insurance is hereby ordered to make the

payment of Rs.6,59,459/- to the applicant with 9% interest per annum from the

date of the filing of complaint till the date of payment and litigation cost of

Rs.1,500/- within a period of two months from the date of order or to make

deposit the amount in forum”.

3.     Aggrieved by the order of the District Forum, the insurance company filed an

appeal against the same before the State Commission which allowed it and set aside

the order of the District Forum.

4.     We have heard Mr Harsha Vardhan Surana, learned counsel appearing on behalf

of the petitioner and perused the record. Learned counsel for the petitioner has

submitted that the State Commission committed a mistake in accepting the plea of the

insurance company based on the report of the surveyor. He submitted that the District

Forum has rightly included the goods kept in the godown when the fire broke out and

the total amount of loss because of the presence of goods in the godown at that time

was not at all disputed by the respondents. The only contention which was relied upon

by the State Commission in the impugned order was that the surveyor had said that the

goods under dispute were not insured as they were kept in by friendly transfer and not

by proper sale purchase. Another contention raised by the learned counsel was in

respect of receipt of part payment towards claim of the petitioner from the insurance

company. He submitted that the State Commission has erred in its observation that

since the petitioner had received the part payment as full and final settlement and

hence, he was not entitled to raise any further claim. He further submitted that the State

Commission failed to appreciate that the amount was accepted by the petitioner

because of his helplessness of undergoing financial hardship due to loss in the

business caused by the fire and his business rotation would have suffered if he had not

received the part payment from the insurance company. He, therefore, pleaded that the

order of the District Forum which was a well-reasoned order needs to be maintained

and the impugned order be set aside.

5.     We have given our thoughtful consideration to the contentions raised by the

learned counsel of the petitioner. We find that the State Commission has reversed the

order of the District Forum by giving reasons which are in line with the established legal

decision and the judgment of the Apex Court. Coming to the first plea regarding the

exclusion of goods, the value at Rs.6,59,459/- is based on the report of the surveyor. It

is well established by now that the report of the surveyor appointed by the insurance

company is an important document and the same should not be rejected by the Fora

below unless cogent reasons are recorded for doing so. The State Commission has

stated that it did not see any legal ground before the District Forum to reject the report

of the surveyor. The report of the surveyor should have been rebutted on behalf of the

complainant/ petitioner since the respondents/OPs had filed the surveyor’s report as

their evidence. Besides this, the State Commission has also recorded the following

circumstances which lead the State Commission to reject the plea of the petitioner:

“The owner of Surana Associates has been stated to be Dinu Surana whereas

the owner of Surana Electronics has been stated to be Ankur Suarana. The

name of the father of the both is Mahendra Singh Surana. In this way the relation

of these both is proved. It has occurred in the report of the surveyor that disputed

goods were available in the godown of Surana Electronics and it belongs to

Suaran Associates. It was put there only as trust because both are having

relations together. Hence, these goods were kept in the godown as trust and

goods were not insured. In addition this fact has also occurred that the fire

incident occurred on 15.04.2007 and at the same day Surana Associates has

stated to sale these goods to Suarana Electronics. It is also a strange co-

incidence. As well as these facts have also come on record that goods which

have been stated to be of Surana Associates on 15.04.2007, prior to the same

Surana Electronics had never purchased the same”.

6.     So far as the other ground taken by the petitioner is concerned, the receipt of

amount of Rs.14,76,264/- sent by the insurance company against the claim put up by

the petitioner is not disputed by the petitioner. In fact, the petitioner filed certain

additional documents which have been placed on record in which it has been included.

Copy of the voucher signed by the petitioner indicates that he has received the amount

in question by way of full and final discharge of his claim against the insurance

company/ respondents. This being the undisputed factual position, the petitioner cannot

be permitted to approach the Consumer Forum for the balance amount treating the

payment as only part payment against the claim unless he establishes that he accepted

the amount under undue influence, misrepresentation or fraud played by the insurance

company. No such plea has been put forth by the petitioner. The only point made by

learned counsel is that after receipt of the amount, the petitioner sent a letter to the

insurance company asking for the payment of balance amount. This, however, cannot

provide any comfort to the petitioner to reopen the matter having accepted the amount

sent by the insurance company and signed the discharge vouched sent by the

insurance company. The claim of the petitioner stood settled. The view taken by the

State Commission is in line with the judgment of the Apex Court in the case of United

India Insurance vs Ajmer Singh Cotton and General Mills and Ors.  [(1999) 6

Supreme Court Cases 400]. In the absence of any allegation of fraud,

misrepresentation or undue influence, we cannot agree with the contention of the

learned counsel.

7.     In view of the above, we do not find any merit in the revision petition which is liable

to be dismissed. We dismiss the same at the threshold with no order as to cost.

 

……..………Sd/-……………………

(K.S. CHAUDHARI J.)

Presiding Member

 

 

……....……Sd/-………………………

(SURESH CHANDRA)

Member

 

satish

 

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

          FIRST APPEAL NO. 692 of 2006

(Against the order dated 31.08.2006 in Complaint Case No. C-21/95 of the

State Consumer Disputes Redressal Commission Delhi)

 

Devinder Singh Gupta S/o Late Shri B.L. Gupta Resident of H.No. I-4 Mandir Wali Gali No.10 Brahampuri, Delhi-53 Presently at Pocket F, 56-D, MIG Flats, GTB Enclave Dilshad Garden Delhi-93

                                                               …      Appellant

  Versus

Dr. Vivek Pal Navjyoti Eye Centre 53, Daryaganj New Delhi-11002

                                                        …      Respondent

 

BEFORE:

          HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

HON’BLE MRS. REKHA GUPTA, MEMBER

 

For Appellant                     :   Mr. Santosh Kumar, Advocate

For Respondent                :   Ms. Anu Narula, Advocate

 

Pronounced   on     16 th   January, 2013

ORDER

PER VINEETA RAI, MEMBER 

1.      This first appeal has been filed by Devinder Singh Gupta, the original complainant

before the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred

to as the State Commission) and Appellant herein, being aggrieved by the lesser

compensation awarded to him by the State Commission in respect of his complaint of

medical negligence against Dr. Vivek Pal, Respondent herein. 

FACTS : -

2.      In his complaint before the State Commission, Appellant had stated that following

a minor complaint of a cosmetic nature in his left eye he consulted Respondent, who

was an eye surgeon, in his clinic in Daryaganj in June, 1993, who after examining him

informed that he was suffering from an innocuous growth known as Pytreygium and

since there was likelihood that the growth may increase excision was advised through a

minor surgery, which would ensure that the Appellant’s eye would become normal

within five days.  Appellant, therefore, agreed to undergo this surgery, which was

conducted in October, 1993 in Respondent’s clinic at Masjid Moth, New Delhi and he

was thereafter prescribed medicines for both local application, which

included Mitomycine-C, as also oral medication.  However, soon after Appellant’s left

eye became red and there was acute pain and irritation, which persisted, and, therefore,

he consulted the Respondent, who assured him that if he continues to regularly

use Mitomycine-C, his eye would become normal.  However, during the course of using

this medicine, Appellant’s eye further deteriorated and became very dry and there was

loss of vision in that eye.  Appellant complained about this to Respondent, who changed

the medicine, which only further aggravated the condition.  Appellant, therefore,

consulted another ophthalmologist Dr. G.C. Mukherjee, who informed him that his left

eye had become very dry due to wrong prescription of Mitomycine-C and he was

advised to consult Dr. P. Vishwanathan Gopal atGeetanjali Hospital, New Delhi, who

confirmed that the eye had got damaged due to prolonged use of Mitomycine-

C.  Appellant thereafter went to All India Institute of Medical Science, New Delhi, where

this diagnosis was confirmed by a Cornea Specialist-Dr. Anita Panda.  He was advised

to stop using all the medicines, including Mitomycine-C.  Being aggrieved because of

the medical negligence and deficiency in service on the part of Respondent, because of

which the Appellant’s eye became dry, he issued a legal notice to Respondent to pay

him Rs.10 Lakhs as compensation but received no response.  Appellant, therefore,

approached the State Commission with a complaint of medical negligence and

deficiency in service against Respondent and requested that he be directed to pay

Rs.10 Lakhs as damages and compensation since there was total loss of vision in

Appellant’s left eye, which had adversely affected both his professional and personal

life, as also any other relief as deemed appropriate. 

3.      Respondent on being served filed a written rejoinder denying the above

allegations, which he termed as false, frivolous and vexatious.  It was contended that

Appellant approached him with a condition known as Pytreygium, which is a growth of

extra skin and if it reached the pupil area of the eye, it could permanently hamper the

Appellant’s vision.  Surgery was, therefore, necessary, which was satisfactorily

conducted.  Appellant, thereafter advised both oral medication as also medicine through

local application and a week later when the healing of the Appellant’s eye was

completed, he was advised to useMitomycine-C for two weeks since this was necessary

to prevent recurrence of Pytreygium.  This medicine, which comes in the form of

injection, was converted into eye drops for use three times a day and Appellant was

verbally told that over use of this medicine for more than two weeks is

harmful.  Unfortunately, Appellant did not heed this advice and instead of coming back

for a further check up appears to have continued using Mitomycine-C and taking

treatment from various other doctors as per his own whim and fancy.  It was only on

03.03.1994 i.e. after over four months that Appellant visited the Respondent and told

him that he was still continuing the use of Mitomycine-C.  Respondent immediately

asked him to discontinue the same and to come back after 15 days.  Appellant again did

not heed this advice and consulted Respondent after three months i.e. on 22.06.1994

when he was prescribed natural tear drops and lacritubeointment.  A perusal of these

facts clearly indicate that it was the Appellant who was responsible for the damage

caused to his left eye by prolonged use ofMitomycine-C on his own volition and against

medical advice given by Respondent.  There was, therefore, no deficiency in service or

medical negligence of Respondent.

4.      The State Commission after hearing the parties and on the basis of evidence

produced before it held the Respondent guilty of “limited negligence” by not advising the

Appellant in writing to use Mitomycine-C only for a particular limited period.  The

relevant part of the order of State Commission reads as follows :“28.   By not prescribing in writing in the prescription that medicine Mitomycine-C should be used, at first instance, only for two weeks to O.P. has committed an offence of limited medical negligence as complainant also cannot be excused for contributory negligence by not approaching the treating Doctor after few days and hopping from one

Doctor to another and continued using the medicine for long resulting in dry-eye syndrome causing loss of vision in the eye. 29.    OP is guilty of this limited medical negligence amounting to deficiency in service due to which the complainant has lost his vision of one eye though he can also be not absolved from contributory negligence which is a mitigating circumstance for awarding compensation.”

 

5.      The State Commission, therefore, held that a lump-sum compensation of

Rs.50,000/- to the Appellant would meet the ends of justice. 

6.      Being aggrieved by the lesser compensation, the present first appeal has been

filed.  

7.      Learned counsel for both parties made oral submissions.

8.      Learned counsel for the Appellant contended that the State Commission erred in

holding the Respondent guilty of only limited medical negligence and on the other hand

holding the Appellant guilty of “contributory negligence” by not following the advice of

Respondent.  In fact, following the surgery the Appellant did visit the Respondent doctor

for further check-up prior to 03.03.1994.  According to Appellant, Respondent had

prescribed him Mitomycine-C on 18.10.1993 and the prescription did not indicate either

the duration for taking the medicine or its possible harmful side effects.   The Appellant

was also not advised when he should come back for a follow up check.   Further, when

the Appellant visited the Respondent on 03.03.1994 with a serious complaint regarding

his operated eye, Respondent again sought to hide the correct facts by recording that

the condition of appellant’s eye as also the vision was normal whereas by then he had

already started losing his eyesight and he was having acute pain in his eye because of

which he was constrained to approach other doctors, who advised the Appellant to

immediately stop the use of Mitomycine-C.  It was these doctors who informed him that

the problem in his left eye had occurred due to over use of Mitomycine-C, which should

not have been used for more than two weeks.  Counsel for the Appellant further stated

that the conduct of the Respondent was suspect before the State Commission as is

evident from the fact that he did not produce the necessary documents on the ground

that these had been destroyed in a fire.  Because of the medical negligence and

callousness on the part of Respondent, Appellant lost the vision in his left eye causing

him a great deal of mental agony and adversely affecting his work as a senior clerk in

the Supreme Court of India.

9.      Learned counsel for Respondent denied the above allegations and stated that it is

not factually correct that Respondent had prescribed Mitomycine-C to the Appellant on

18.10.1993 i.e. immediately following the surgery.  In fact, he was prescribed other

medicines and ointments after the surgery and it was only after a week when the eye

had healed that Mitomycine-C was prescribed to the Appellant.  It is a proven fact in

ophthalmology medical literature thatMitomycine-C is successful in checking the

recurrence of Pytreygium, which has a very high incidence of recurrence and is

routinely prescribed for limited periods following such surgeries.  It was under these

circumstances that Respondent rightly prescribed this medicine to the

Appellant.  Although not written down in the prescription, it was made clear verbally to

the Appellant that the eye drops were to be used three times a day for a limited period

of two weeks and its over use was harmful.  This is further confirmed by the fact that

Respondent converted only one vial of Mitomycine-C injection into eye drops, which

would have lasted at the most for a little over two weeks.  From this fact alone, it is clear

that the Appellant had been procuring this medicine and getting it converted into eye

drops from some other doctor(s) and in this way using it for several weeks i.e. till

03.03.1994 when he next visited the Respondent, who immediately directed him to

discontinue the use of this medicine.  Learned counsel for Respondent pointed out that

a senior ophthalmologist of Safdarjung Hospital, New Delhi, Dr. Malik, has confirmed to

him in writing that Appellant had consulted him and also informed him that he was

continuing to use Mitomycine “on his own”. Learned counsel for Respondent stated that

Appellant continued to disregard medical advice of Respondent even after 03.03.1994

by not coming for follow up visits, which he was advised to do by Respondent, who had

prescribed him some other medicines and wanted to assess their effect.  From the

above facts, it is clear that Appellant, who was not an illiterate person and who had

been clearly orally advised to use Mitomycine-C eye drops only for a limited duration by

Respondent, failed to follow this advice and continued to use the medicine on his own,

for which Respondent cannot be held responsible, particularly since Appellant did not

even come for the follow up visit after two weeks.  There was no medical negligence or

deficiency in service on the part of Respondent, who had prescribed the right medicine

and given correct advice regarding its limited period of use.  The present first appeal,

therefore, having no merit deserves to be dismissed.

10.    We have heard learned counsel for both parties and have carefully gone through

the evidence on record.  The fact that Appellant visited the Respondent’s clinic with a

complaint in his left eye and was detected with Pytreygium, for which a minor surgery

was conducted is not in dispute.  It is also a fact that Appellant was

prescribed Mitomycine-C by Respondent, which is a drug of choice, to ensure

that Pytreygium does not recur since it has a high degree of recurrence. While it is a

fact (as also observed by the State Commission) that no directions were given by

Respondent in writing to Appellant regarding the duration for which the drug should be

used or any written precaution against its prolonged use, we find force in the contention

of Respondent that since he had converted only one vial of Mitomycine injection into

eye drops, this itself indicates that the intention was clearly for its limited use for about

two weeks and not for several months.  When specifically asked by us, learned counsel

for the Appellant also fairly conceded that Respondent had converted only one vial

of Mitomycineinjection into eye drops, thus confirming the Respondent’s clear intention

regarding its use for a limited period.  It is, thus, apparent that Appellant had been using

this medicine for several weeks by getting the Mitomycine injection converted into eye

drops through some other source and not by the Respondent, for which Respondent

cannot be held responsible.  It was under these circumstances that the State

Commission had held the Respondent guilty of only “limited medical negligence” for not

having put down in writing the dosage and duration of the medicine in the prescription

slip.  We agree with this finding.  We further agree that the Appellant is guilty of

“contributory negligence”  by not visiting the Respondent for follow up visits as advised

on more than one occasion and instead consulting one doctor after another and also

continuing Mitomycine-C for long period on his own volition, which resulted in

the  dry  eye  syndrome  and consequent loss of vision in the left eye. 

11.    To sum up, we uphold the order of the State Commission that Respondent is

guilty only of “limited medical negligence” by not giving a written prescription and

instead verbally advising the Appellant, for which a compensation of Rs.50,000/- is

reasonable and we, therefore, confirm the same.  The present first appeal is

dismissed.  Respondent is directed to pay a sum of Rs.50,000/- to the Appellant within

six weeks, failing which it will carry interest @ 6% per annum for the period of

default.  No costs.      

Sd/-

(ASHOK BHAN, J.)

PRESIDENT

 

Sd/-

(VINEETA RAI)

MEMBER 

Sd/-

(REKHA GUPTA)

MEMBER

 Mukesh    

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   845 OF 2011

(From the order dated 10.01.2011 in Appeal No. 749/2010

of Chhattishgarh State Consumer Disputes Redressal Commission)

RAMSUYASH PANDEY Ward No. 5, New Teachers Colony Tilda, Post Nevra District Raipur Chhattisgarh

….. Petiitoners

Versus

1. MANAGING DIRECTOR, C.G. STATE POWER DISTRIBUTION CO. LTD. Raipur Chhattisgarh

2. EXECUTIVE ENGINEER, CHHATTISGARH STATE VIDYUT VITRAN COMPANY Raipur Chhattisgarh

 BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner(s) : In Person

PRONOUNCED   ON :     17 th   JAN. 2013  

O R D E R 

PER SURESH CHANDRA, MEMBER           Petitioner in this case, who was complainant before the District Forum, filed a

complaint under section 12 of the Consumer Protection Act, 1986 praying for

compensation and restoration of disrupted power supply.  The petitioner had a power

supply connection of the respondent company for supply to 5 H.P. motor for his tube-

well.  On 23.5.2010, wire of the electric supply line was stolen and power supply to the

tube-well got disrupted.  The petitioner requested the respondent company to restore

the supply but the same was not done and hence the consumer complaint came to be

filed.  According to the respondents, the power supply was restored on 09.07.2010 after

carrying out the survey of the area, the respondent company had issued necessary

work order for laying new wire in place of the stolen wire.  The work of restoration was

completed at the earliest and the petitioner had no right to claim 

compensation in the matter.  The District Forum vide its order dated 19.11.2010 partly

accepted the complaint and directed the respondent company to pay Rs.7,000/- to the

petitioner for mental agony caused to him along with cost of Rs.1,000/-.  Not satisfied

with the order of the District Forum, the petitioner filed an appeal before

the Chattisgarh State Consumer Disputes Redressal Commission, Raipur (State

Commission, for short) for enhancement of the awarded amount.  Another appeal was

filed by the respondent company challenging the order of the District Forum with the

State Commission.  Since none appeared for the appellant, State Commission

dismissed the appeal in limine and also for want of prosecution at admission hearing

stage without notice to the respondent.  Aggrieved by the impugned order, the petitioner

has filed the present revision petition.

 2.      We have heard the petitioner, who has appeared in person.  It was pointed out by

him that after dismissal of his appeal in limine, he had also filed an application dated

10.1.2011 praying for review of the impugned order but the same was dismissed vide

order dated 10.2.2011 passed by the State Commission.  A copy of which is placed at

page 21 of the record.  The petitioner further submitted that the appeal filed by the

respondent company before the State Commission has also been dismissed by the

State Commission vide a separate order dated 30.3.2011, by which order the order of

the District Forum has been upheld confirming the quantum of compensation of

Rs.7,000/- awarded by the District Forum for mental agony.  In the circumstances, the

petitioner submitted that since the deficiency in service on the part of the respondent

company has been upheld by the Fora below, his prayer for enhancement of the

amount of the compensation is suitable.  There is no other legal issue involved in the

matter.

 3.      Perusal of the record indicates that the District Forum has awarded an amount of

Rs.7,000/- for mental agony suffered by the petitioner.  State Commission on appeal

has upheld the amount as adequate and refused to interfere with the quantum

thereof.  We do not find any reason or justification to interfere with the impugned order

through this revision petition.  We, therefore, dismiss this revision petition as devoid of

any merit at the threshold with no order as to cost.

..……………Sd/-………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER 

..…………Sd/-…………………

(SURESH CHANDRA)

MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO.   2011 OF 2011

(From the order dated 11.04.2011 in Appeal No. A/08/2002

of Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench Nagpur)

 Kailash Dainaji Kharde Resident of Pari Amma Nagar Mothi Umari Akola Maharashtra 

Petitioner

Versus Mittal Electronics Kala Chabutara Akola Maharashtra Executive Manager TATA Sky Ltd., 3rd Floor Bombay Dying, A O Building Pandurang Bhutkar Marg Worli, Mumbai – 25

Respondents BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI     PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA                  MEMBER

For the Petitioner                 Mr Krishna Muraree Singh, Advocate

PRONOUNCED   ON :     17 th     JANUARY 2013  

O R D E R 

PER SURESH CHANDRA, MEMBER

 

        Petitioner Kailash Dainaji Kharde was the original complainant before the District

Consumer Disputes Redressal Forum, Akola, Maharashtra (in short, ‘the District

Forum’) and respondents 1 and 2 were the opposite parties (OPs) in the same order.

He is serving in the telephone department at Akola, Maharashtra.

2.     Briefly stated, the main grievance of the complainant was that against the

assurance given by OP 1 at the time of installation, OP 2 had increased the rent of the

Dish Antenna by charging the entire amount. The allegation of giving a false temptation

and non-fulfilment of the promise made because of which he suffered mental torture

and inconvenience, the complainant filed this complaint before the District Forum for

getting damages from the OPs.

3.     After hearing the parties and on appraisal of the issues and documents before it,

the District Forum allowed the complaint by directing both the respondents/ OPs to

initially provide services of TATA Sky for one year by charging the Rs.200/- per month

from the complainant. For mental tension and physical harassment compensation of

Rs.1,000/- was awarded and Rs.500/- were awarded by way of cost of the proceedings.

4.     Not satisfied with this award treating it as inadequate, the complainant filed an

appeal before the State Consumer Disputes Redressal Commission, Maharashtra,

Circuit Bench at Nagpur (in short, ‘the State Commission’) . None appeared for the

complainant/ appellant or OP 1. After hearing the counsel for the OP 2, the State

Commission vide its impugned order held that reasonable compensation had been

awarded by the District Forum while partly accepting the complaint and hence did not

find any merit in the appeal and dismissed the same. Aggrieved by this order of the

State Commission, the complainant has now filed the present revision petition.

5.     We have heard Mr Krishna Muraree Singh, learned counsel appearing on behalf of

the petitioner and perused the records. The only issue involved in the present revision

petition is in respect of quantum of compensation awarded by the District Forum and

upheld by the State Commission. It is to be noted that award of compensation

and quantum thereof have to be decided by the Fora below in their distinction keeping

in view the peculiar facts and circumstances of the case. There is no other legal issue

involved. In the given facts and circumstances, we do not find any merit which would

justify our interference with the impugned order. We, therefore, dismiss this revision

petition in limini with no order as to cost.

……..………Sd/-……………………

(K.S. CHAUDHARI J.)

Presiding Member

 

 

……....……Sd/-………………………

(SURESH CHANDRA)

Member

satish

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   2310 OF 2009

(From the order dated 23.03.2009 in Appeal No. 2633/2008

of Karnataka State Consumer Disputes Redressal Commission)

 

United India Insurance Co. Ltd., Through its Manager At Regional Office, Kanchenjunga, Barakhamba Road, New Delhi.

……. Petitioner

Versus

 1.  Sri Sadanand R. Kotian S/o Raju Kotian, R/o Pithordi, Udayavara, Udupi Taluk and District Karnataka – 576101

 2.  The Manager, Syndicate Bank, Yadayavara, Udupi Taluk and District Karnataka – 576101

…. Respondents

 

BEFORE

 

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

 

HON’BLE MR. SURESH CHANDRA, MEMBER

 

For the Petitioner(s)   Mr. Ravi Bakshi, Advocate

For the Respondent-1   Mr. Ranji Thomas, Advocate

Respondent-2   NEMO

 PRONOUNCED   ON :   17 th   JAN. 2013

 O R D E R

 

PER SURESH CHANDRA, MEMBER           This revision petition has been filed by the insurance company which was

opposite party no. 1 in the complaint before the District Forum.  The respondent no. 1

was the original complainant and respondent no. 2 was OP No. 2 being the Bank which

had financed the purchase of the boat in question.

 2.      Briefly stated, the respondent no. 1 / complainant purchased a mechanized fishing

vessel named “Shwethasri” for a total sum of Rs.11,50,000/- by availing a loan of

Rs.8,00,000/- from respondent no. 2 bank.  The said boat was being used for

fishing.  This boat of the respondent no. 1 which had been insured with the petitioner

company drowned in the high sea on 15.09.2004.  When the claim was lodged by the

respondent no. 1 with the petitioner insurance company, it was repudiated by the

petitioner insurance company as not being genuine.  A complaint was, therefore, filed

by respondent no. 1 before the District Forum, which was registered as CC-27/2006.   It

was allowed by the District Forum, Udupi, Karnataka vide its order dated 25.08.2007.

3.      However, on appeal before the Karnataka State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in appeal No. 2008 /

2007 the State Commission remitted the matter back to the District Forum for fresh

inquiry and recording additional evidence in terms of the directions of the State

Commission.  Pursuant to this order of the State Commission, the District Forum vide its

order dated 25.10.2008 confirmed its earlier order and allowed the complaint in terms of

the following directions:-

“The complaint is allowed.  Opposite party No. 1 (Insurance Co.) is directed to pay to the complainant a sum of Rs.10,00,000/- with interest @12% per annum from 15.09.2004 till payment alongwith Rs.10,000/- as damages towards the mental agony and Rs.5,000/- towards the legal fee, Rs.3,000/- as cost of the proceedings to be paid within a month from the date of receipt of the order.”

 

4.      Aggrieved by this order of the District Forum, the petitioner filed an appeal bearing

no. 2633 / 2008 before the State Commission against this order.  Vide impugned order

dated 23.03.2009, the State Commission partly allowed the appeal and modified the

order of the District Forum in terms of the following directions:-“The appellant / Insurance Company is directed to pay Rs.10,00,000/- to the complainant within two months from today.          In the event if the Insurance Company fails to pay the said amount within two months as directed above, the Insurance Company is liable to pay interest at 9% per annum on the said sum of Rs.10,00,00/- from the date of the complaint filed before the DF till realization.           The appellant / Insurance Company has deposited a sum of Rs.5,25,000/- in this appeal. If the respondent / complainant filed a memo for payment, the office is directed to pay the same to the respondent/ complainant.           The balance amount is to be paid by the Insurance Company to the complainant as directed above.”

 

5.      It is against the aforesaid order dated 23.3.2009 passed by the State Commission

that the present revision petition has been filed by the petitioner insurance company. 6.      We have heard Mr. Ravi Bakshi, Advocate for the petitioner insurance company

and Mr. Ranji Thomas, Advocate for the respondent no. 1.  No one has appeared for

the respondent no. 2 bank.

 7.      It was submitted by the learned counsel for the petitioner that the claim of the

complainant came to be rejected by the insurance company because it was a fraudulent

insurance claim since the boat of the complainant which had allegedly sunk on the high

sea reappeared with similar features but with a different name and some minor changes

in the boat number etc.  He contended that the State Commission failed to properly

appreciate the similarities in the two boats especially with regard to engine number and

erred in holding that two boats were different.  Another contention raised by the learned

counsel was that the State Commission erred in holding that there was no need to call

any witness from Goa Port Authorities which would have enabled the petitioner to prove

that the boat purchased by Seetabai was named ‘Manal’ which was subsequently

renamed as Jai Prakash.  Thus, the petitioner was denied reasonable opportunity to

defend itself and, therefore, the impugned order is bad in law and is liable to be set

aside.

 8.      Per contra, the counsel for the complainant / respondent no. 1 has submitted that

both the contentions raised by the counsel for the petitioner have been duly considered

by the State Commission in its well-reasoned order and both the fora below have

returned their concurrent findings based on facts of this case emanating from the

evidence adduced by the parties.  He further submitted that the complaint has already

gone through  two rounds of litigation before the Fora below and yet on re-examination

of the dispute, both the District Forum and State Commission have returned their

concurrent findings.  There is, therefore, no merit in the present revision petition and the

same is liable to be dismissed.

9.      We have considered the rival contentions carefully.  The State Commission while

partially accepting the appeal of the insurance company has made the following

observations in support of the impugned order:-

“No doubt the Insurance Company made an application before the DF to call for the official of the Goa Port in order to establish that the boat by nameManal is the boat which subsequently named as ‘Jai Prakash’ which was said to have been purchased by Seetabai.  When the document produced bySeetabai conclusively proves that fact that the said boat was purchased from Purandara Kotian there is no need to call for any witness from Goa Port authorities.  Further it was not so difficult for the Insurance Company to produce the documents after obtaining the certified copies from the Goa Port to show that the said  Manal boat was subsequently named as ‘Jai Prakash’ which is said to have been purchased by Seetabai.           The Engine number and other particulars in respect of two boats are one is relates to the boat said to have been sunk in the high sea and another relates to the boat found near the Bhatkal sea shore.  So far as engine number is concerned in respect of the boat belonging to the complainant is ALMV-400/9 No. AL 7832 whereas  engine number of the boat found near the Bhatkal sea shore is Ashok Leyland ALMU 400 No. AL 7832. Thebaots that was manufactured by Ashok Leyland bears engine numbers as 400 and another boat 400/9.  Even length, breadth of the boats in respect of these two  boats are altogether different. Therefore it cannot be said that the boat found near the Bhatkal Sea shore is the same boat which is said to have been sunk in the

high sea.  Therefore  the DF is right in awarding compensation of Rs. 10,00,000/- in favour of the complainant.           If the Insurance Company is still of he view that the complainant has made a false and fradulent claim misrepresenting the facts, it is open for the Insurance Company to institute criminal proceedings as against the complainant  and in the event if the Insurance Company were to succeed in the prosecution liberty is reserved to the Insurance Company to take steps to recover the amount from the complainant.           In view of the peculiar facts and circumstances of the case we are of the view that the interest awarded by the DF on the amount payable is to be denied.  In addition in our view the complainant is also not entitled for any compensation and costs. This observation which we are now making is sufficient to safeguard the interest of the Insurance Company.  Hence impugned order to that extent requires modification.”

 10.    We agree with the view taken by the State Commission.  Both the aspects

pleaded by the learned counsel for the petitioner have been suitably dealt with by the

State Commission in its impugned order and no fresh material has been placed by the

petitioner to persuade us to take a different view.  We have also thought it necessary to

call for the original record of the District Forum and to give opportunity to the petitioner

to produce photographs in support of the contentions regarding the number of gear box

of the Boat being identical and showing the change of name of the boats by scratching

the surface paint.  While the District Forum record has been received and perused by

us, no further documents as per our direction regarding the gear box number and

scratching of the surface paint have been produced by the petitioner in support its

contention in spite of the opportunity given to learned counsel for the same. 

 

11.    In the circumstances, we do not find any merit in this revision petition and dismiss

the same with the parties bearing their own costs...…………Sd/-…………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER 

 

..…………Sd/-…………………

(SURESH CHANDRA)

MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO. 2945 OF 2011(From the order dated 21.06.2011 in Appeal No.789/11 of the Haryana State Consumer

Disputes Redressal Commission, Panchkula)

 

PCARDB Through its CEO Cooperatives Bhawan, Panchkula Sector -2, District Panchkula

                                               …        Petitioner/OP

                                        Versus 1. Shri Satbir Singh S/o Shri Devi Ram R/o Village Kharkhari, Tehsil Bawal, Bawal, District Rewari, Haryana

 2. Shri Om Prakash PCARDB Branch Manager, Bawal District Rewari, Haryana

                                         …    Respondents/OP

BEFORE

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

 

            For the Petitioners          in both the matters

: Mr. Rishi Malhotra, Advocate   

          For the Res. No.1in both the matters

For the Res.No.2               

in both the matters

: Ms. Girija Wadhwa, Advocate

 

Mr. Dinesh Chander Yadav & Mr

Mr. A.S. Rish, Advocates

     

 

 

 

PRONOUNCED ON     17 th   January,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER

          This revision petition has been filed against the order dated 21.6.2011 passed by

the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the

State Commission’) in Appeal No. 789 of 2011 – PCARDB Vs. Satbir Singh & Ors. by

which while dismissing appeal, order of District Forum allowing complaint was upheld.

2.       Brief facts of the case are that complainant/Respondent No. 1 had raised a loan

of Rs.4,00,000/- from petitioner/opposite party in order to run his soap manufacturing

unit.  The loan was sanctioned by OP/Respondent No. 2 by mortgaging the immovable

property of the complainant and loan amount was to be disbursed to the complainant in

three instalments. First instalment of Rs. 1,75,000/- was disbursed on 13.3.2009 and

second instalment of Rs.1,00,000/- was disbursed on 30.3.2009 to the complainant, but

the third instalment of Rs.1,25,000/- was withheld by opposite party.  Complainant

served notice on the opposite party for release of third instalment, but opposite party

vide its order dated 19.8.2009 informed that for want of utilization certificate of two

instalments, third instalment of loan could not be disbursed.  In such circumstances,

complainant alleging deficiency on the part of opposite parties filed complaint.  Opposite

parties filed written statement and took the plea that complainant did not properly utilize

first two instalments so the third instalment could not be validly released, hence,

complaint may be dismissed.  Learned District Forum vide order dated 27.4.2011

allowed complaint and directed opposite party to release third instalment of

Rs.1,25,000/- to the complainant within a period of one month and further awarded

Rs.1,00,000/- as litigation expenses. This order was challenged by the petitioner before

the State Commission and the learned State Commission vide its impugned order

dismissed appeal.

3.       Heard Learned Counsel for the parties and perused record.

4.       Learned Counsel for the petitioner submitted that third instalment of loan could

not have been released in the absence of utilisation certificates as per rules and further

submitted that utilisation certificate issued by the Branch Manager and Field Officer was

false and petitioner has not committed any deficiency in not releasing third instalment,

hence, revision petition be accepted and order of learned State Commission and District

Forum may be set aside. On the other hand, learned Counsel for the

respondent-1/complainant submitted that proper utilisation certificate was given by

concerned officers of opposite party and order passed by learned State Commission is

in accordance with law, hence, petition be dismissed.

5.       Perusal of record reveals that Branch Manager and Field Officer of the opposite

party had issued utilisation certificate dated 30.4.2009 to the complainant in which it

was specifically mentioned that complainant had utilised earlier two instalments of loan

amount. Further, this certificate was affirmed by report dated 3.6.2009 submitted by the

Branch Manager and Field Officer of the Petitioner Bank.   It appears that another

Branch Manager also inspected the site on 30.4.2009 and submitted his report on

2.5.2009 in which it was mentioned that he visited the site of the complainant on

30.4.2009 for checking utilisation of loan amount and found that borrower (complainant)

has not purchased the material according to the bills and only temporary arrangement

was made by the borrower for the eyewash.  It was further observed in the report that

borrower manipulated reports with the help of Field Officer, Om Prakash and Branch

Manager, Om Prakash and both the officers issued false loan utilisation certificate.  It is

not clear whether there were two Branch Managers of the Petitioner Branch at Bawal

and what was the occasion for second Branch Manager to inspect the site after two

days when Field Officer and Branch Manager had already reported about utilisation of

loan instalments.  Second report of Branch Manager also speaks about temporary

arrangement of material.  In such circumstances, it appears that amount of earlier two

instalments had been utilised by the complainant and the third instalment of loan was

not released by the Petitioner Bank which amounted to deficiency in service and

learned State Commission has not committed any error in dismissing appeal of the

petitioner.

6.       Learned Counsel for the Petitioner submitted that petitioner has taken disciplinary

action against the defaulting Field Officer and Branch Manager for giving false utilisation

certificates and in such circumstances, it may be held that utilisation certificates

procured from the Field Officer and the Branch Manager were not true.  This  argument

is devoid of force as no such plea has been taken by the petitioner in the written

statement filed before the learned District Forum and only revision petition discloses this

fact that charge sheet dated 30.4.2010 has been issued to the delinquent

officials.  Complainant is not concerned with this charge sheet and this fact should have

been brought to the notice of District Forum and necessary documents should have

been filed along with written statement before the District Forum which passed the

judgment after one year of the alleged charge sheet.  In such circumstances,

cognizance of charge sheet cannot be taken for setting aside impugned order.

7.       Perusal of record reveals that out of Rs.4,00,000/- sanctioned loan, Rs.2,75,000/-

had been disbursed to the complainant and only loan of Rs.1,25,000/- was withheld and

for this deficiency, learned District Forum has awarded damages to the tune of

Rs.1,00,000/- which has been upheld by the learned State Commission.  It appears that

this amount of damages is on very higher side.  In such circumstances, we deem it

proper to reduce the amount of compensation to the tune of Rs.40,000/- instead of

Rs.1,00,000/-.

8.       Consequently, revision petition filed by the petitioner is allowed in part and order

of learned State Commission dated 21.6.2011 and order of District Forum dated

27.4.2011 are modified to the extent that complainant/respondent is entitled to get

damages of Rs.50,000/- instead of Rs.1,00,000/- awarded by the District Forum.  There

shall be no order as to costs.Sd/-

                                                                               ..…………………………

( V.B. GUPTA, J)

PRESIDING MEMBER 

Sd/-

..……………………………

( K.S. CHAUDHARI, J)

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO. 2944 OF 2011(From the order dated 21.06.2011 in Appeal No.788/11 of the Haryana State Consumer

Disputes Redressal Commission, Panchkula)

 

PCARDB Through its CEO Cooperatives Bhawan, Panchkula Sector -2, District Panchkula                                                   …         Petitioner/OP

                                        Versus 1. Shri Kuldeep Singh S/o Shri Rati Ram R/o Mauja Ramsinghpura (Nanglia), Tehsil Bawal, Bawal, District Rewari, Haryana

 2. Shri Om Prakash PCARDB Branch Manager, Bawal District Rewari,

                                        …    Respondents/OP

BEFORE

 HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

 

            For the Petitioners         

: Mr. Rishi Malhotra, Advocate   

          For the Res. No.1For the Res. No.2

   

 

: Ms. Girija Wadhwa, Advocate

 

Mr. Dinesh Chander Yadav & Mr

Mr. A.S. Rish, Advocates

     

 

PRONOUNCED ON     17 th   January,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER

          This revision petition has been filed by the petitioner against the order dated

21.6.2011 passed by the Haryana State Consumer Disputes Redressal Commission,

Panchkula (in short, ‘the State Commission’) in Appeal No. 788 of 2011  – PCARDB Vs.

Kuldeep Singh & Ors. by which while dismissing appeal, order of District Forum allowing

complaint was upheld.

2.       Brief facts of the case are that complainant/Respondent No. 1 had raised a loan

of Rs.6,00,000/- from petitioner/opposite party in order to run his soap manufacturing

unit.  The loan was sanctioned by OP/Respondent No. 2 by mortgaging the immovable

property of the complainant and loan amount was to be disbursed to the complainant in

three instalments. First instalment of Rs. 2,50,000/- was disbursed on 13.3.2009 and

second instalment of Rs.2,00,000/- was disbursed on 30.3.2009 to the complainant, but

the third instalment of Rs.1,50,000/- was withheld by opposite party.  Complainant

served notice on the opposite party for release of third instalment, but opposite party

vide its order dated 19.8.2009 informed that for want of utilization certificate of two

instalments, third instalment of loan could not be disbursed.  In such circumstances,

complainant alleging deficiency on the part of opposite parties filed complaint.  Opposite

parties filed written statement and took the plea that complainant did not properly utilize

first two instalments so the third instalment could not be validly released, hence,

complaint may be dismissed.  Learned District Forum vide order dated 27.4.2011

allowed complaint and directed opposite party to release third instalment of

Rs.1,50,000/- to the complainant within a period of one month and further awarded

Rs.1,00,000/- as litigation expenses. This order was challenged by the petitioner before

the State Commission and the learned State Commission vide its impugned order

dismissed appeal.

3.       Heard Learned Counsel for the parties and perused record.

4.       Learned Counsel for the petitioner submitted that third instalment of loan could

not have been released in the absence of utilisation certificates as per rules and further

submitted that utilisation certificate issued by the Branch Manager and Field Officer was

false and petitioner has not committed any deficiency in not releasing third instalment,

hence, revision petition be accepted and order of learned State Commission and District

Forum may be set aside. On the other hand, learned Counsel for the

respondent-1/complainant submitted that proper utilisation certificate was given by

concerned officers of opposite party and order passed by learned State Commission is

in accordance with law, hence, petition be dismissed.

5.       Perusal of record reveals that Branch Manager and Field Officer of the opposite

party had issued utilisation certificate dated 30.4.2009 to the complainant in which it

was specifically mentioned that complainant had utilised earlier two instalments of loan

amount. Further, this certificate was affirmed by report dated 3.6.2009 submitted by the

Branch Manager and Field Officer of the Petitioner Bank.   It appears that another

Branch Manager also inspected the site on 30.4.2009 and submitted his report on

2.5.2009 in which it was mentioned that he visited the site of the complainant on

30.4.2009 for checking utilisation of loan amount and found that borrower (complainant)

has not purchased the material according to the bills and only temporary arrangement

was made by the borrower for the eyewash.  It was further observed in the report that

borrower manipulated reports with the help of Field Officer, Om Prakash and Branch

Manager, Om Prakash and both the officers issued false loan utilisation certificate.  It is

not clear whether there were two Branch Managers of the Petitioner Branch at Bawal

and what was the occasion for second Branch Manager to inspect the site after two

days when Field Officer and Branch Manager had already reported about utilisation of

loan instalments.  Second report of Branch Manager also speaks about temporary

arrangement of material.  In such circumstances, it appears that amount of earlier two

instalments had been utilised by the complainant and the third instalment of loan was

not released by the Petitioner Bank which amounted to deficiency in service and

learned State Commission has not committed any error in dismissing appeal of the

petitioner.

6.       Learned Counsel for the Petitioner submitted that petitioner has taken disciplinary

action against the defaulting Field Officer and Branch Manager for giving false utilisation

certificates and in such circumstances, it may be held that utilisation certificates

procured from the Field Officer and the Branch Manager were not true.  This  argument

is devoid of force as no such plea has been taken by the petitioner in the written

statement filed before the learned District Forum and only revision petition discloses this

fact that charge sheet dated 30.4.2010 has been issued to the delinquent

officials.  Complainant is not concerned with this charge sheet and this fact should have

been brought to the notice of District Forum and necessary documents should have

been filed along with written statement before the District Forum which passed the

judgment after one year of the alleged charge sheet.  In such circumstances,

cognizance of charge sheet cannot be taken for setting aside impugned order.

7.       Perusal of record reveals that out of Rs.6,00,000/- sanctioned loan, Rs.4,50,000/-

had been disbursed to the complainant and only loan of Rs.1,50,000/- was withheld and

for this deficiency, learned District Forum has awarded damages to the tune of

Rs.1,00,000/- which has been upheld by the learned State Commission.  It appears that

this amount of damages is on very higher side.  In such circumstances, we deem it

proper to reduce the amount of compensation to the tune of Rs.50,000/- instead of

Rs.1,00,000/-.

8.       Consequently, revision petition filed by the petitioner is allowed in part and order

of learned State Commission dated 21.6.2011 and order of District Forum dated

27.4.2011 are modified to the extent that complainant/respondent is entitled to get

damages of Rs.50,000/- instead of Rs.1,00,000/- awarded by the District Forum.  There

shall be no order as to costs.                                                                         ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER 

 

..……………Sd/-………………

( K.S. CHAUDHARI, J)

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO.   4762 OF 2012 (From the order dated 18.9.2012 in Appeal No.233/11 of the Haryana State Consumer

Disputes Redressal Commission, Panchkula)

Surender S/o Shri Kishan Singh, R/o Vill. Bidhal, Distt. Sonepat, Haryana

                                                                                   …        Petitioner/OP

                                       Versus

 National Ins. Co. Ltd. Azadpur Branch II (Direct Agent Branch) Laxmi Tower, C- 1/3, Naini Wala Bagh, Azadpur Commercial Complex, Delhi  - 110033

                                       …    Respondents/Complainant

BEFORE

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

 

          For the Petitioner             :         Mr. Vikas Chauhan, Advocate

         

PRONOUNCED   ON     18 th   January,     2013

 O R D E R

  PER   JUSTICE K.S. CHAUDHARI, MEMBER

          This revision petition has been filed by the petitioner against the impugned order

dated 18.09.2012 passed by the Haryana State Consumer

DisputesRedressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal

No. 233 of 2011 – National Insurance Co. Ltd. Vs. Surender by which while allowing

appeal, set aside the order of learned District Forum and dismissed complaint.

2.      Brief facts of the case are that complainant/respondent’s Truck HR 46 F 2837 was

insured with OP/Respondent w.e.f. 04.10.2007 to 03.10.2008.  On 20.5.2008, the truck

was stolen and on the very same day, FIR No.81/2008 was lodged by complainant at

PS: Sindhawali Ahir, Baghpat.  The complainant gave intimation of theft to opposite

party on 12.8.2008.  Opposite Party repudiated claim on account of violation of

condition and in such circumstances, alleging deficiency on the part of OP filed

complaint before the District Forum. Learned District Forum after hearing both the

parties allowed complaint and directed OP/Respondent to pay Rs. 10,00,000/- along

with 9% p.a. interest and further awarded Rs.5,000/- as compensation and Rs.5,000/-

as litigation charges.  OP filed appeal before the State Commission and learned State

Commission vide impugned order allowed appeal and dismissed complaint.

3.      Heard learned Counsel for the petitioner at admission stage and perused record.

4.      Learned Counsel for the petitioner submitted that learned State Commission has

committed error in dismissing complaint as report of theft was made on the very same

day and OP was also informed timely, hence, the revision petition may be accepted and

order of the learned State Commission be set aside. 

5.      This is an admitted fact that complainant’s truck was insured by OP and during

subsistence of insurance, the truck was stolen on 20.5.2008 and on the very same day

FIR was lodged under Section 379 IPC.  Complainant has not mentioned purposely in

the complaint that when intimation of theft was given to OP. But, letter dated 19.8.2008

issued by OP by which claim was repudiated reveals that by letter dated 12.8.2008,

intimation of theft was given by the complainant to OP meaning thereby intimation of

theft was given to the Insurance Company after 83 days of theft.  As per terms and

conditions of the policy it was obligatory on the part of the complainant to intimate about

theft to the OP immediately.  Learned State Commission has rightly allowed appeal and

dismissed claim of the complainant on the basis of Hon’ble Apex Court judgment 2011

CTJ 11 (SC) (CP) – Suraj   Mal Ram   Niwas   Oil Mills (P) Ltd . Vs.United India Insurance Co. Ltd. &   Anr . and other judgments of this Commission.  We do not find

any infirmity in the order passed by the learned State Commission and there is no

jurisdictional error or material irregularity in the order passed by the learned State

Commission and revision petition is liable to be dismissed at admission stage.

5.      Consequently, the revision petition filed by the petitioner is dismissed at admission

stage with no order as to costs.

Sd/-

                                                                           ..…………………………

( V.B. GUPTA, J)

PRESIDING MEMBER 

Sd/-

..……………………………

( K.S. CHAUDHARI, J)

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   3157 OF 2012

(From the order dated 17.05.2012 in Appeal No. 704/2009

of Haryana State Consumer Disputes Redressal Commission)

WITH

I.A. No. 1 /2012 (STAY)

 

1.   Nikunj Lohia s/o H.P. Lohia R/o G-3, Maharani Bagh, New Delhi

 2.   Harsh Gupta S/o Sh. Anil Gupta, B-41, Maharani Bagh, New Delhi

 3.   Abha Mittal, Mr. D.C. Mittal, R/o 1010, Sector 17, Faridabad

                                                   ….  Petitioners

 

Versus

 Yashpal Kalra S/o Late Roop Chand, House No. 2-H/11, NIT Faridabad

                                            ….  Respondent

 

BEFORE

HON’BLE MR. JUSTICE V.B. GUPTA,

PRESIDING MEMBER

HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

 

For the Petitioner(s)   Mr. Madhurendra Kumar, Advocate

 PRONOUNCED   ON :     17 th   JANUARY 2013

 O R D E R

 

PER JUSTICE V.B. GUPTA, PRESIDING MEMBER 

      Being aggrieved by the order dated 17.05.12 passed by the State Consumer

Disputes Redressal Commission, Haryana, Panchkula (for short ‘the State

Commission’), the appeal filed against order dated 10.11.2008 passed by the District

Forum, Faridabad was dismissed. 

2.   Brief facts of this case are that the respondent no. 1 / complainant was permanent

employee of East India Cotton Manufacturing Ltd. under the control and supervision of

the petitioners / OP No. 1 to 3 and a school, namely, Vidya Niketan was being run by

them.  There was a contract between the management of East India Cotton

Manufacturing Ltd. and its employee in which a specific provision was that children of

employees will get education in the aforesaid institute on the basis of ‘no profit no loss’,

i.e., minimised fee of Rs.30 per month.  It is further alleged that respondent no. 1

children have been studying since very beginning in the aforesaid institute.  It is alleged

that respondent no. 1 has been cheated by charging full fee.  Accordingly, respondent

no. 1 filed an application praying not to discriminate with him and other employee to

which he did not get any positive response rather have threatened

to  shunt  out  of  his  children  from  the institute.  Thus,

alleging negligence and deficiency on the part of the petitioner, a complaint was filed

before the District Forum. 

3.   The complaint was contested by the petitioners in which a plea was raised that there

was no contract between East India Cotton Manufacturing Ltd. and its employees that

children of the employees would get education in the above said school on the basis of

no profit no loss.  It has been further stated by the petitioners that there was grant given

by the company to its employees that employees’ children will get education at

subsidised fee in Vidya Niketan Sr. Sec. School and for this company had to

compensate the school against the concession given by it to the employee’s children.  It

was the sole discretion of Vidya Niketan society to whom it will grant the concession,

thus, there was no fault on the part of the petitioners. 

4.   The District Forum accepted the complaint by granting the following reliefs:-“i)     to compensate the wards of its employees by providing them facilities and concessions in connection with education inVidya Niketan Sr. Secondary School, Faridabad, in accordance with the existing arrangement and the practice followed heretofore. ii)      to refund the earlier excess fee charged by the respondents from the wards of the complainant alongwith interest @12% p.a. from the date of deposit till its realisation. iii)     to pay Rs.2200/- as litigation charges.”

 

5.      Aggrieved by the order of the District Forum, petitioners filed an appeal before the

State Commission.  Along with the appeal an application seeking condonation of delay

of 132 days was also filed.  

6.   The State Commission vide its impugned order, dismissed the appeal on the ground

of limitation as well as on merits.  Hence this revision petition.

 

7.   It has been pointed out by the counsel for the petitioner that the complaint filed by

the complainant before the District Forum was barred by limitation and the complainant

does not fall within the category of “consumer”. 

8.   These pleas have been raised by the petitioner for the first time before this

Commission. Be that as it may, since getting education in the school is a continuous

process so it cannot be said that complaint was barred by limitation. 

9.   Even otherwise, above pleas raised by the learned counsel for the petitioner before

this Commission falls to the ground in view of the admission made by the petitioners in

their written version, in which it is averred :-“After the closure of the company, it is not in condition to compensate the school against the concession given by the school to the children of employees.”

 

10. In view of the aforesaid admission made by the petitioners in its written statement,

admittedly, it had been earlier compensating the school against the concession given by

the school to the children of the employees.  Now, it does not lie in the mouth of

petitioners to escape their liability.  The State Commission while dismissing the appeal

in its impugned order observed:-“Even on merits, the learned counsel for the respondent no. 1 submitted that many complaints were filed against the OPs – appellants by other similarly situated employees claiming the benefit of concession in fees of their wards studying in the school (OP NO. 4) being run by OP Nos. 1 to 3.  One of the said complaints bearing 46 to 7.5.1992 was partly allowed by District Forum, Faridabad vide order dated 14.12.1993 upholding right of complainants for having concessional fee for this children and same was confirmed in appeal No. 17/12.5.1994.  Even Revision Petition filed by OP before Hon’bleNational Commission bearing RP No. 448 of 1994 also stood dismissed vide judgement dated 17.5.1995.  Since the proposition already stands settled.  No ground to interfere in the impugned order.”

 

11. Thus, we do not find any infirmity or ambiguity in the order passed by the State

Commission.  There is no legal point involved in the present revision petition.  The

revision petition is thereby dismissed with cost of Rs.5,000/-.  Cost be deposited by way

of demand draft in favour of ‘Consumer Legal Aid Account’ of this Commission within

four weeks, failing which it shall carry interest @9% p.a. till realisation. 

12. List on 01.03.2013 for compliance. 

..…..………………………

(V. B. GUPTA J.)

PRESIDING MEMBER 

 

..….…………………………

(K. S. CHAUDHARI J.)

MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO. 2382 OF 2012(From the order dated 17.2.2012 in Appeal No.860/11 of the Haryana State Consumer

Disputes Redressal Commission, Panchkula)

 

State Bank of India Through Chief Manager, Branch Rewari Bajaria Rewari, Haryana

                                                                   …        Petitioner/OP

                                        Versus Om Prakash Saini S/o Shri Shyam Lal R/o House No. 1008, Sector-3, Part-2, District Rewari, Haryana

                                                   …    Respondents/Complainant

 

BEFORE

 

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

 

          For the Petitioner             :         Mr. Gautam Gupta, Advocate

          For the Respondent         :         In person

 

PRONOUNCED ON 18 th     January,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER  

          This revision petition has been filed by the petitioner against the impugned order

dated 17.02.2012 passed by the Haryana State Consumer Disputes Redressal

Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 860 of 2011 –

State Bank of India Vs. Om Prakash Saini by which appeal of the petitioner was

dismissed and order of District Forum allowing complaint was upheld.

2.       Brief facts of the case are that complainant filed complaint before the District

Forum alleging that he was holding saving bank account with the petitioner/OP. On

23.5.2010, complainant went to ATM of OP to withdraw Rs.5,000/-. Rupees 5,000/-

could not be withdrawn due to defect in the ATM machine, but received a slip showing

deduction of Rs.5,000/- from his account.  Complainant immediately contacted opposite

party on its toll free no. 1800112211. Opposite party assured that complainant would

get the money back.  Complainant also demanded video footage of the transaction at

the relevant time but that was not supplied.   Rupees 5,000/- was also not returned to

him and in such circumstances alleging deficiency of service, filed complaint before the

District Forum for refund of amount.   Opposite party filed written submissions and

submitted that ATM machine clearly shows withdrawal of sum of Rs.5,000/- on

23.5.2010 and complainant was given intimation of this fact along with copy of ATM

record and prayed for dismissal of complaint.  Learned District Forum after hearing both

the parties accepted complaint and directed opposite party to refund Rs.5,000/- as

compensation and Rs.1100/- as litigation expenses.  Opposite party/petitioner filed

appeal before the State Commission which was dismissed by the learned State

Commission against which this revision petition has been filed.

3.       Learned Counsel for the petitioner submitted that J.P. Roll contained various

other transactions effected on 23.5.2010 and many persons had withdrawn money, but

none other except the complainant, complained. Had there been any defect in the ATM

machine, more complaints would have been received and in such circumstances,

learned  State Commission has committed error in dismissing appeal, hence, the

revision petition be accepted and order of learned State Commission may be set aside

and complaint be dismissed. On the other hand, General Power of Attorney Holder of

Respondent submitted that order passed by learned State Commission is in accordance

with law and as the petitioner has not supplied video footage, petition is liable to be

dismissed.

4.       Complainant has supported his claim only by his affidavit, but has not adduced

any other evidence to substantiate his claim before the District Forum.  Learned District

Forum observed that “The first and foremost question before this Forum is whether

affidavit of the complainant should be relied upon or the slip of the ATM

Machine?  Normally, machine does not lie but man may do so.  But it also varies from

man to man. Every person cannot be presumed to be a liar.   It is reliability and

trustworthiness of the person which matters. Some time machine may fail. There may

be unexplainable number of reasons for the same.  After perusal of the record and after

hearing the complainant himself, our judicial conscience is completely satisfied that the

complainant is a reliable and trustworthiness person”.

5.       Learned District Forum held complainant reliable and trustworthiness only on

account of judicial conscience on the ground that there was no reason for the

complainant to tell a lie only for a sum of Rs.5,000/-.  It is true that normally a person

would not tell a lie but in civil matters complainant was obliged to prove his claim by

preponderance of evidence. Complainant should have called for the statement of the

opposite party showing opening balance in ATM machine on 23.5.2010 and closing

balance on that day along with amount withdrawn which should have proved that

Rs.5,000/- were not received by the complainant and he got only a slip showing receipt

of the money.  When many other persons had withdrawn money from that ATM on that

day and none complained for not receiving money it cannot be presumed that

complainant did not receive Rs.5,000/- from the ATM machine. Complainant has not

proved any written protest made to the bank authorities immediately and has based his

claim only on the basis of information given on toll-free number of the opposite party.

6.       Exactly what message was given is also not on record.  Learned District Forum

allowed the complaint mainly on the ground that video footage were not furnished to the

complainant by the opposite party and the learned State Commission also observed the

same fact in the impugned order.  In this case, video footage had no relevance at all

because this is not the case of the complainant that he did not go to operate ATM

machine of opposite party.  Opposite party has also mentioned in its written statement

that camera is fixed only on the face of the user and not on the keys of the ATM and the

delivery window.  In such circumstances, non-supply of video footage had no bearing on

the claim of the complainant and on this deficiency claim could not have been allowed

by the learned District Forum and upheld by the learned State Commission.

7.       Consequently, petition filed by the petitioner/OP is allowed against the

respondent and impugned order dated 17.2.2012 passed by the learned State

Commission in F.A. No. 860 of 2011 is set aside and complaint of the complainant is

dismissed.  Parties to bear their own cost.

                                                                          ..………………Sd/-…………

( V.B. GUPTA, J)

PRESIDING MEMBER 

 

..……………Sd/-………………

( K.S. CHAUDHARI, J)

 MEMBERK

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI

 

REVISION   PETITION     NO. 2982 OF 2012 (From the Order dated 2.5.2012 in Appeal No. 456/2010 of 

Haryana State Consumer Disputes Redressal Commission, Panchkula)  

Shri Kuldeep Singh S/o sh. Hoshiyar Singh R/ Village – Damayapur Post Office - BadliDistt. Jhajjar, Haryana

Petitioner 

Versus 

IFCO Tokio General Insurance Co. Ltd. Reg. Office at IFCO House, IIIrd Floor34, Nehru Place New Delhi Through Its Manager                                    

Respondent BEFORE:                   HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

       HON’BLE MR. SURESH CHANDRA, MEMBER 

 For the Petitioner                           :              Mr. Jitender Vashisht,  Advocate   Pronounced   on :       18 th   January, 2013   

PER SURESH CHANDRA, MEMBER

This revision petition has been filed by the petitioner, who was the original

complainant before the District Forum, against the order dated 2.5.2012 passed by the

Haryana State Consumer Disputes Redressal Commission, Panchkula (‘State

Commission’ for short) by which the State Commission allowed the appeal filed by the

respondent / opposite party and reversed the order dated 8.3.2010 passed by the

District Consumer Forum, Bhiwani in complaint No.503 of 2008. The District Forum had

earlier accepted the complaint of the petitioner by granting the following reliefs:-

(i)            To pay Rs.15,18,100/- along with interest @ 12% p.a., i.e., from 18.2.2007 the date of repudiation till its final realization.

(ii)          To pay Rs.2200/- as litigation charges

 

2.         Aggrieved by the aforesaid order of the District Forum, the OP Insurance Co.

had challenged the same before the State Commission which vide its impugned order

reversed the order of the District Forum and accepted the appeal of the OP Insurance

Co.  Aggrieved by this order of the State Commission, the complainant has now filed the

present revision petition against the impugned order.

3.         Brief facts of this case which are not disputed between the parties are that the

petitioner / complainant had got insured his truck bearing Regn. No.HR-63A-1885 with

the respondent / OP for the period from 9.5.2006. Unfortunately, the vehicle was stolen

on 19.12.2006. FIR No.607 of 2006 dated 30.12.2006 was lodged and information was

sent to the opposite party on 31.12.2006 along with requisite documents. However, the

claim of the complainant was closed as “No Claim” and the complainant was informed

by the OP Insurance Co. accordingly vide its letter dated 18.2.2007. Alleging it as a

case of deficiency in service, the complainant invoked the jurisdiction  of the District

Forum, Bhiwani. On being noticed, the OP Co. contested the complaint. It is submitted

that the vehicle in question was stolen on 19.12.2006 whereas the FIR

was lodged  on 30.12.2006 and the information was sent to the OP on 31.12.2006. It is

further submitted that the complainant did not produce requisite documents. Some

information which was required was also not submitted despite repeated reminders and

hence the claim was closed as “No Claim” and the complainant informed accordingly

vide letter dated 18.7.2008. On appraisal of the pleadings of the parties and the

evidence placed before it, the District Forum accepted the complaint and granted the

relief mentioned hereinbefore. Aggrieved by the order of the District Forum, the OP

Insurance Co. filed an appeal before the State Commission which was allowed and the

order of the District Forum was reversed and set aside by the State Commission vide its

impugned order. The complainant/petitioner has now challenged the same through the

present revision petition.

3.         During the course of admission hearing, learned counsel for the petitioner has

contended that the claim of the complainant where the theft of the vehicle is an admitted

fact, it is the responsibility of the OP Insurance Co. to pay the claim amount (known as

insured amount) which is reflected in the complaint petition and in no circumstances, the

respondent company can ignore its own responsibility to pay the insured amount to the

complainant only on the ground of delayed FIR. He further submitted that the

complainant informed the matter immediately after its occurrence to the police but the

police did not want to proceed for investigation into the matter and started the case only

on 30.12.2006 although the matter was reported in writing by the petitioner on

19.12.2006. In view of this, it was the job of the police to start the investigation and the

complainant could not compel the police to start the case and hence the State

Commission erred in not appreciating this aspect properly while non-suiting the claim of

the petitioner. He also argued that the word “Immediately” which is mentioned in the

terms and conditions of the policy, does not specify the time limit within which the

insured will inform the matter and hence even if there was some delay in informing the

matter to the OP Insurance Co., the same should have been ignored by the State

Commission since the petitioner had already informed the local police station of the theft

in writing on 19.12.2006. He, therefore, pleaded that the order passed by the District

Forum was based on correct appreciation of the facts and circumstances and hence the

same needs to be restored and confirmed and the impugned order be set aside.

4.         Learned counsel has also cited the two cases of National Insurance Co.

Ltd.   Vs. Sanjay   Shivhare   [IV (2007) CPJ 366 (NC)]  and Oriental Insurance Co. Ltd.

&   Ors.   Vs.   ParveshChander   Chadha   [IV (2008) CPJ 211 (NC)]   decided by the

National Commission in support of his submission.

5.         We have carefully considered the submissions made by the learned counsel and

also gone through the two orders of the National Commission relied upon by the learned

counsel. The State Commission while reversing the order of the District Forum and non-

suiting the claim of the petitioner has made the following observations in support of the

impugned order:-

“Undisputedly, the vehicle in question was stolen on 19.12.2006 and the information to the Insurance Company was given on 31.12.2006 i.e. after twelve days from the date of alleged accident.  No FIR was recorded in the concerned police station on the date of theft.  Thus, there was violation of the condition No. 1 of the policy.  The District Consumer Forum has not appreciated the factual position on record and committed great error while accepting the complaint of the complainant and as such the impugned order under challenge is not sustainable in the eyes of law.”  

6.         While passing the impugned order, the State Commission has relied on

the judgement of the National Commission in the case of New India Insurance Co. Ltd.

Vs.   Trilochan   Jane in F.A. No.321 of 2005 decided on 9.12.2009  in which the vehicle

was stolen on 8.4.2000 and the matter was reported to the police on 10.4.2000, i.e.,

after two days of the incident and information to the Insurance Co. was given after about

9 days, i.e., on 17.4.2000 and even then the National Commission dismissed the

complaint on the ground of delay in reporting the theft of the vehicle. In the present

case, we find that the FIR with the police is recorded on 30.12.2006 and the intimation

to the Insurance Co. was given on 31.12.2006. In the circumstances, we agree with the

view taken by the State Commission which is in line with the later decision of this

Commission in Trilochan Jane’s case (Supra) where the delay in reporting the theft was

held to be crucial in the matter of violation of terms and conditions of the policy based

on which the claim of the complainant was non-suited. So far as the two cases relied

upon by the learned counsel are concerned, we find that the facts and circumstances of

the case of Sanjay Shivhare were different and hence the decision of the three Member

Bench in that case would not get attracted to the present case. So far as the ratio of the

second case of Parvesh Chander Chadha is concerned, this case was decided

on  28.8.2008 by a Two Member bench of this Commission wherein in spite of the

delay, the order of the District Forum, as upheld by the State Commission,  directing the

claim to be settled on non-standard basis as 75% was upheld. However, in the case

of Trilochan Jane (Supra), this Commission has taken a different view in similar

circumstances relying on the ratio laid down by the Apex Court in the case of United

India     Insurance Co. Ltd. Vs. M/s   Harchand   RaiChandan   Lal   [JT (2004) 8 SC 8].  In

this later judgement in the case of Trilochan Jane, this Commission in line with the ratio

laid down by the Apex Court has held that the terms of policy have to be considered as

it is and nothing can be added or subtracted from the  same. It was held that the policy

provides that in the case of theft, the matter should be reported “Immediately”. In the

context of a theft of the car,  word  “Immediately” has to be construed strictly to make

the Insurance Co. liable to pay the compensation. We are of the considered view that

looking to the facts and circumstances of this case, the State Commission rightly

applied the ratio of later judgement in the case of Trilochan Jane while non-suiting the

claim of the petitioner. We, therefore, do not find any ground which would justify our

interference with the impugned order. The revision petition, therefore, stands dismissed

in limine with no order as to costs.

..…………Sd/-……..……….     (K.S. CHAUDHARI, J.)

                                                                                                             PRESIDING MEMBER

  

            ….………Sd/-………………                                                                            (SURESH CHANDRA)

                                                                                                                                     MEMBER

SS/ 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO. 2533 OF 2011

(Against the order dated 29/03/2011 in Appeal No 2721/2007 of Haryana State Consumer Disputes Redressal Commission, Panchkula)

 

 

1 .SMT. SHANTI DEVI Widow of Inder Singh R/o Village Dharauli Tehsil & District Jhajjar Haryana

 2 .Narender Singh, S/o Inder Singh, Village Dharauli Tehsil Jhajjar & District Haryana

 3. Surender Singh S/o Inder Singh Village Dharauli Tehsil & District Jhajjar Haryana

 4.  Vikram Singh S/o Inder Singh Village Dharauli Tehsil & District Jhajjar Haryana

 5 .Kiran Daughter of Inder Singh Village Dharauli Tehsil & District  Jhajjar Haryana

 6. Rekha Daughter of Inder Singh Village Dharauli Tehsil & District Jhajjar Haryana

 7. Parveen Daughter of Inder Singh Village Dharauli Tehsil Jhajjar & District Haryana

....Petitioner(s)

Versus

 

 1 .ORIENTAL INSURANCE CO. LTD. Regional Office, LIC Building 2nd Floor, Jagdhari Ambala Haryana

 2 .Oriental Insurance Company Ltd Branch office at Bahadurgarh District Jhajjar Haryana

 3 .Oriental Insurance Company Ltd. Branch Office at Mohali Mohali Punjab

....Respondent(s)

  

BEFORE:

                        HON'BLE MR. SURESH CHANDRA , PRESIDING MEMBER

 

 For the Petitioners               :                       Mr. R.K. Bhartiya, Advocate

 

Pronounced on :       18 th   January, 2013

PER SURESH CHANDRA, MEMBER

Briefly stated, the facts of this case are that one Inder Singh (hereinafter referred to as

life assured) obtained an insurance policy from the OP Insurance Co. for the period

from 26.2.1997 to 25.2.2007 for a sum of Rs.5 lakhs. The life assured died in a road

accident in the midnight of 7/8.1.2002. FIR No.197 of 6.3.2002 was lodged with the

Police Station, Gurgaon wherein an ‘Untraced Report’ was prepared by the police and

forwarded to the Chief Judicial Magistrate, Gurgaon. Necessary intimation was given to

the OP Insurance Co. but it refused to pay the claim amount and hence alleging it a

case of deficiency in service and unfair trade practice, the complainants/petitioners filed

a complaint before the District Forum. The District Forum vide its order dated 13.8.2007

accepted the complaint and directed the OP Insurance Co. to pay Rs.5 lakhs to

the  complainants/petitioners within a period of one month. The OP Insurance Co. filed

an appeal against this order of the District Forum before the Haryana State Consumer

Disputes Redressal Commission, Panchkula (‘State Commission’ for short). The State

Commission vide its order dated 29.3.2011 allowed the appeal of the OP Insurance Co.

and set aside the aforesaid order of the District Forum and dismissed the complaint.

Aggrieved by the impugned order of the State Commission, the complainants have filed

this revision petition against the same.

2.         We have heard Mr. R.K. Bhartiya, Advocate, learned counsel for the petitioners

and perused the record.

3.         It is seen that the State Commission has reversed the order of the District Forum

and dismissed the complaint on the ground that it was barred by limitation. While

accepting the appeal of the OP Insurance Co., the State Commission has made the

following observations:-

 

“From the perusal of  record, it is crystal clear that the claim submitted by the complainant was treated as no claim by the opposite parties and the intimation in this regard was sent to the complainant on 17.03.2003 whereas the complainants have filed the present complaint on 25.08.2006 i.e. beyond the prescribed period of two years as provided under Section 24-A of the Consumer Protection Act, 1986.  It is  well settled principle of law that no complaint can be entertained by the Consumer Forum if it is not filed within two years from the date of cause of action.  Reliance is placed on the case titled as Kandimalla Raghavaiah & Co. Versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court)  (CP) wherein it has been held by Hon’ble Apex court that:-

“If the complaint is barred by time and yet the

consumer forum decides the complaint on

merits, the forum would be committing an

illegality and, therefore, the aggrieved party

would be entitled to have such order set

aside”

 

4.         Applying the ratio laid down by the Apex Court to the facts of the present case,

the State Commission treated the complaint of the petitioners as barred by limitation

and hence held that the same could not have been entertained by the District Forum.

The view taken by the State Commission in its impugned order is correct and according

to the provisions of the Consumer Protection Act  and the law laid down by the Apex

Court. This being the legal position based on the undisputed facts, we do not find any

merit in the revision petition and the same is liable to be set aside at the threshold. It is

accordingly dismissed with no order as to costs.

 

….………Sd/-………………

                                                                            (SURESH CHANDRA)

                                                                                                             PRESIDING MEMBER

SS/

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

          FIRST APPEAL NO. 176 OF 2006

(Against the order dated 30.12.2005 in CD No. 46 of 2001 of the

A.P. State Consumer Disputes Redressal Commission, Hyderabad)

 

1. G. Ravender Rao (wrongly mentioned as Raghavender Rao in the complaint) Managing Director Yashoda Super Special Hospital, Malakpet Hyderabad

 2.  Yashoda Super Speciality Hospital Malakpet, Hyderbad Rep. by Dr. Shari G.S. Rao, Executive Director

 3.  Dr. Shri P. Ranganadham, MBBS, M.Ch Neuro Surgeon Yashoda Super Speciality Hospital Malakpet, Hyderabad

 4.  Dr. Shri A.V. Naidu, Pathologist Yashoda Super Speciality Hospital Malakpet, Hyderabad

 5.  Dr. Shri Sasidhar, Radiologist Yashoda Super Speciality Hospital Malakpet, Hyderabad

 6.  Dr. Shri Lingaiah Medical Superintendent Yashoda Super Speciality Hospital

Malakpet, Hyderabad

                                          …      Appellants

  Versus

1. Shri Ghulam Dastagir Father and Natural Guardian of Miss Rousheen Ahmedi, 15 yrs. Minor represented by her father Shri Ghulam Dastagir R/o H.No. 8-2-27/1-2-3, Teacher’s Colony Mahabubnagar

 2.  New India Assurance Co. Ltd. Divisional Office 5-2-174/2 Madanmohan Building, R.P. Road Secunderabad

                                                     …      Respondents

BEFORE:

          HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

HON’BLE MRS. REKHA GUPTA, MEMBER

 For Appellants                : Mr.Y. Rajagopala Rao, Advocate

For Respondents           : Ms.Rekha Aggarwal, Amicus Curiae for R1

                                         Mr. Navdeep Singh, Advocate for R-2

 

Pronounced on 21 st   January, 2013    

 

ORDER

PER VINEETA RAI, MEMBER 

1.       This first appeal has been filed by G. Ravender Rao and five others being the

Managing Director and doctors at the Yashoda Super Speciality Hospital, Hyderabad

[Appellants herein and Opposite Parties before the A.P. State Consumer Disputes

Redressal Commission (hereinafter referred to as the State Commission)] being

aggrieved by the order of that Commission, which allowed the complaint of medical

negligence and deficiency in service filed against them by Respondent Ghulam Dastagir

(hereinafter referred to as Respondent).

FACTS :

2.       In his complaint before the State Commission, Respondent had contended that

he had taken his only daughter Rausheen Ahmedi, aged 15 years (hereinafter referred

to as the patient) with complaint of severe headache to Appellant Hospital, where she

was prescribed certain tests by Dr. P. Ranganadham, Neuro Surgeon and Appellant

No.3, which included a CT scan conducted by Dr. Sasidhar, Radiologist and Appellant

No.5.  Patient was diagnosed with Meningioma i.e. a non-cancerous tumor on the left

side of her brain and was advised immediate surgery.  Respondent, therefore, got his

daughter admitted to the Appellant Hospital and the surgery was conducted on

08.05.2000.  He was informed that the operation was successful and that the tumor had

been completely removed.  He was further informed that the pathology lab where the

tumor was sent for analysis had confirmed that it was Meningioma (non-

cancerous).  Appellant No.3-Neuro Surgeon, who performed this surgery, after seeing

the patient on 09.05.2000 went away on a holiday for about 10 days.  During her period

of stay in the hospital, when she was attended by another Neurologist, her condition

deteriorated and her head and eyes were swollen after the surgery and on 16.05.2000

and 17.05.2000 water was removed from her spinal cord.  Late at night on 17.05.2000

her condition became very serious and she became incoherent and this was

immediately reported to the doctor on duty. Despite her remaining in the hospital and

being under the treatment of their doctors, her condition did not improve and on

21.05.2000, when Appellant No.3-Neuro Surgeon returned from holiday, she was again

shifted to the acute neuro ward.  On 03.06.2000, Appellant No.3-Neuro Surgeon stated

that the patient was now normal and she was discharged with an advice to bring her

after one week for a check-up.  Respondent had paid a bill of Rs.94,815/- for her

treatment.  When the patient visited the Appellant hospital on three occasions with

complaints of feeling unwell, she was assured that it would take time to be completely

cured.  It was only on 26.06.2000 that she was readmitted in the Appellant hospital and

Respondent was informed that the patient required a second CT scan which was

conducted on 28.06.2000, after which Respondent was informed that the area of the

brain where surgery had been conducted had got filled with “pus” and, therefore, a

second surgery was required.  Appellant No.3-Neuro Surgeon, who performed the

surgery, informed the Respondent that he had to remove the pus from the brain as also

9 cm x 4.5 cm of bone from this area since it had got infected.  The specimen was sent

for a biopsy alongwith infected bone to the pathology lab of the Appellant Hospital.  The

second surgery placed serious doubts in the mind of the Respondent about the

correctness of the treatment being given to the patient and, therefore, he consulted one

Dr. S.S.R. Murthy, Neuro-Surgeon at Apollo Hospital for a second opinion.  Dr. Murthy

opined that if the Meningioma tumor had been completely removed, it could not recur

within a short span of 52 days and, therefore, the diagnosis of Meningioma was wrong

and the patient’s tumor was apparently cancerous.  Soon after taking the second

opinion, Respondent met Appellant No.3-Neuro Surgeon to find out what exactly he had

removed from the brain when he performed the second surgery and was only then

informed that there was also a tumor which was removed during the second

surgery.  On 05.07.2000 the report from the pathology department of the Appellant

Hospital confirmed that the tumor was cancerous.  Appellants assured the Respondent

that a committee would be constituted to look into this case but without taking any

action, the patient was abruptly discharged on 18.07.2000 with an advice to take

radiotherapy treatment.  Before taking radiotherapy, Respondent took a second opinion

from several doctors, who confirmed that the tumor was cancerous and also opined that

the diagnosis of first tumor being non-cancerous was not correct because a cancerous

tumor could not have formed and that too in 4th stage in such a short

period.  Respondent, therefore, issued legal notice to all the 7 Appellants on grounds of

medical negligence and deficiency in service and demanded a sum of Rs.11 Lakhs

towards damages under various heads.  In the meantime, the patient suffered a

paralytic attack and ultimately expired on 04.11.2000.  Respondent, therefore, issued a

second legal notice demanding a sum of Rs.20 Lakhs as compensation and not being

satisfied with the response received that the infection had occurred because of the

number of visitors who came to see the patient, Respondent filed a complaint before the

State Commission on grounds of medical negligence and deficiency in service and

requested that the Appellants be jointly and severally directed to pay him Rs.20 Lakhs

as compensation for causing the premature death of his daughter and untold mental

torture and agony due to the careless and gross medical negligence on the part of the

Appellants. 

3.       Appellants on being served filed their written counter, in which they denied that

there was any medical negligence or deficiency in service in the medical treatment and

care of the patient.  It was stated that following a CT scan of the brain, which revealed a

large lesion in the fronto-temporal area and reported by the radiology test as

Meningioma (i.e. a non-cancerous tumor), the patient was successfully operated and

the entire tumor was removed.  Some post-operative complications in the form of fever

and headache developed because of over-crowding by the patient’s attendants in spite

of repeated requests from the hospital authorities.  The patient was readmitted on

20.06.2000 with very minor complaints, which were treated in two days’ time and the

patient was discharged in a satisfactory condition.  It was only on 26.06.2000 when she

was admitted for a third time that a repeat CT scan was done free of cost, which again

revealed a large lesion in the left fronto-temporal area with infected bone flap.  The

second surgery, therefore, became necessary to remove the bone flap and the

intracranial tumor.  The histopathology report of the tumor this time indicated that it was

a neuroectodermal tumor (malignant) i.e. it was cancerous and the patient was

accordingly advised radiotherapy.  It is not correct that the patient was wrongly

diagnosed as having non-cancerous tumor on the first occasion.  It was submitted that

the Appellants are not aware of the medical opinion that the Respondent had obtained

from some other doctors which needs to be put to strict proof.  According to the

Appellants, the patient was provided the best possible treatment on the basis of a clear

and scientific diagnosis and she was provided medical treatment by well-qualified

specialist doctors in the Appellant hospital. 

4.       The State Commission after hearing the parties and on the basis of evidence

produced before it concluded that Appellants No. 1 to 6 were guilty of medical

negligence and they were jointly and severally directed to pay the Respondent Rs.3

Lakhs as compensation.  Rs.2000/- was awarded as litigation cost.  The relevant part of

the order of the State Commission is reproduced:“…  there is negligence on the part of the opposite party in removing the cancerous tumor and also deficiency in service in not giving the radio therapy after removing the tumor in the first operation.  Advocate for the opposite party referred to page 15227 in book of Neurosurgery.  The author says that ‘the primary treatment should be surgery because cure is possible if complete resection is accomplished.  This requires complete removal of tumor, dural origin and involved skull.

           Had the opposite party no.2 removed the tumor completely conducting the second operation for removal of the tumor at the same place would not arise. IT is stated in the above said book ‘even with a gross total resection however 10% of patients will have recurrence within 10 years’.  In this case if tumor is completely removed and it is a meningioma (non cancerous tumor) the patient would have survived for 10 years.  As the opposite party removed the tumor which is cancerous further aggravated the condition and opposite party conducted the second operation also.  Only after the second operation the patient got admitted in the cancer hospital and gave the radio therapy.  The patient died within 6 months after the first operation.  Due to the medical negligence in not exercising the reasonable degree of care in treating the patient the patient died within 6 months after the operation.  The complainant and his family members lost company of the patient for about 10 years.  The complaint was also made to bear expenses of the second operation which could have been avoided had the first operation conducted with care and caution.  Due to the negligence in conducting the first operation bone was infected.  The complainants claimed Rs.3 lakhs towards medical expenses.  Rs.1,50,000/- towards loss of company, Rs.15 lakhs for pain and suffering.  As the patient was suffering from Cancerous tumor in the brain and considering the fact that she would have survived for 5 to 10 years by giving radio therapy we fix Rs.3 lakhs towards compensation, medical expenses and loss of company as against the claim of Rs.19,60,000.  We fix Rs.2000/- towards legal and miscellaneous expenses.”

 

Hence, the present first appeal.

5.       Learned counsel for both parties made detailed oral submissions.

6.       Learned counsel for the Appellants while reiterating the facts as stated by them

before the State Commission contended that the CT scan done on the patient prior to

the first surgery clearly indicated that there was a tumor because of which the surgery

was conducted.  Thereafter, as per normal procedure after the tumor was removed, it

was sent for biopsy, which confirmed that it was not Malignant.  Therefore, there was no

error in either the diagnosis or the treatment of the patient and the question of

radiotherapy did not arise since the tumor was clearly non-cancerous.  A copy of the

histopathology report/specimen pertaining to the first tumor was sent to Apollo Hospital

for a second opinion shortly after the death of the patient and it was confirmed by the

pathologist in that hospital (Dr. Swaranlata) that the diagnosis of the tumor being non-

cancerous was correct.  Unfortunately, the State Commission concluded that this was a

case of medical negligence by relying on the opinion of one Dr. S.S.R. Murthy, a Neuro-

Surgeon of Apollo Hospital, who apparently informed the Respondent that if the first

tumor had been removed completely, it would not have recurred within a short span of

52 days and further that the first tumor was wrongly diagnosed as Meningioma and,

therefore, a wrong line of treatment was followed causing unnecessary pain and

suffering to the patient and her eventual death.  Counsel for the Appellants pointed out

that Dr. Murthy was not examined by the State Commission as a witness nor was any

affidavit or statement filed by him in support of these facts.  It was only the Respondent,

an interested party, who had stated before the State Commission that this was the

opinion of Dr. Murthy and the State Commission, therefore, erred in taking cognizance

of the same in reaching its finding of medical negligence.  On the other hand, as per

credible documentary evidence on file i.e. the histopathology report and a second

opinion from a pathologist of Apollo Hospital confirming the same in writing, the first

tumor was undoubtedly non-cancerous.  There is also no evidence to support

Respondent’s contention that the first tumor was not completely removed.  When the

second CT scan revealed a tumor and infection in the bone, the Appellants-doctors

using their best professional judgment conducted a second surgery and when their

report indicated that the second tumor was cancerous, radiotherapy was immediately

advised.  Counsel for the Appellants contended that it is medically well established as

per medical literature that a second tumor can recur in the same site as the non-

cancerous tumor even after it is fully removed and cancerous tumors are known to be

fast growing and, therefore, can occur within a short period.  Unfortunately, this is what

happened in the instant case, for which the Appellants cannot be held responsible.

7.       Learned counsel for Respondent in his submissions stated that the State

Commission had rightly concluded that had the entire tumor been removed in the first

instance and a correct diagnosis made, then the second tumor in the same area would

not have recurred.  It was also pointed out that this is further confirmed by the fact that

the second tumor was found to be grade IV i.e. at final stage and this could not have

occurred within 52 days.  The above facts were confirmed by a specialist Dr. S.S.R.

Murthy, from whom Respondent took second opinion and on whose statement the State

Commission had correctly relied.  It was further contended that a well- qualified and

professional doctor should have been immediately able to diagnose a cancerous tumor

on seeing it and in the instant case, the concerned Appellants failed to do so while

removing the first tumor because of their medical negligence and indifferent attitude.  It

was because of this that the patient who was a promising 15 year old girl lost her

life.  Had radiotherapy been advised on 06.05.2000 itself, she would have

survived.  The State Commission, therefore, rightly concluded that there was a clear

case of medical negligence and deficiency in service on the part of Appellant

hospital/doctors.

8.       We have heard learned counsel for both parties and have carefully gone through

the evidence on record.  The facts regarding the patient’s admission in the Appellant

hospital and her having undergone two surgeries there are not in dispute.  What was

challenged by the Respondent before the State Commission was that the Appellant

hospital/doctors had misdiagnosed the patient’s first tumor as not being cancerous

when she was admitted to the Appellant Hospital on 08.05.2000 and conducting an

unnecessary surgery whereas she should have been advised radiotherapy

immediately.  The State Commission, we note, had accepted Respondent’s contention

by primarily relying on Respondent’s evidence citing the opinion of Dr. S.S.R. Murthy, a

Neuro Surgeon of Apollo Hospital, to this effect.  However, in view of the fact that Dr.

Murthy was not examined as a witness before the State Commission nor was any

evidence filed either in the form of his statement or an affidavit, confirming that he had

given this opinion to the Respondent, we find force in the contention of the Appellants

that the State Commission erred in relying on this opinion cited by the Respondent in

reaching its conclusion of medical negligence.  On the other hand, we note that there is

credible documentary evidence on record to indicate otherwise e.g. the histopathology

report filed by the Appellants in respect of the first tumor stating that it was non-

cancerous which fact was confirmed by another pathologist from Apollo Hospital.  Thus,

as stated earlier, we are unable to accept the contention of the Respondent and the

finding of the State Commission that the first tumor was wrongly diagnosed as being

non-cancerous.  We are also unable to agree with the finding of the State Commission

that because the second tumor was detected and removed within 52 days of the first

tumor, this is proof of the fact that the first tumor had not been fully removed by the

Appellants, which clearly amounts to medical negligence.  In this connection, we have

perused the medical literature on the subject* and note that brain tumors, including

Primitive Neuro Ectodermal Tumor (PNET), from which the patient suffered, are

notoriously fast growing and, therefore, its presence in a short span by itself is not

adequate evidence to conclude that the first tumor was not fully removed.   Respondent

on whom there was onus to prove his contention has not been able to produce any

specific evidence, including the evidence of any medical expert before the State

Commission in support.  Respondent has also not been able to prove that there was

any mistake in the first histopathology report, which, as stated earlier, was confirmed by

the opinion of a specialist from another super speciality hospital.         [*Source :(i)           Wikipedia (en.wikipedia.org/wiki/Medulloblastoma)(ii)          Great Ormond Street Hospital for Children, London, U.K.(iii)        Einstein Healthcare Reports – Brain Tumor]

 

9.       What constitutes medical negligence is now well-established through a catena of

judgments of the Hon’ble Supreme Court of India (e.g. in Jacob Mathew v. State of

Punjab [(2005) 6 SCC 1]) and essentially three principles are required to be followed:

(i) Whether the doctor in question possessed the medical skills expected of an ordinary

skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the

practice (of clinical observation diagnosis – including diagnostic tests and treatment) in

the case that would be adopted by such a doctor of ordinary skill in accord with (at

least) one of the responsible bodies of opinion of professional practitioners in the field

and (iii) whether the standards of skills/knowledge expected of the doctor, according to

the said body of medical opinion, were of the time when the events leading to the

allegation of medical negligence

occurred  and  not  of  the  time  when  the  dispute  was  being adjudicated.

10.     Applying these principles to the present case, we are unable to conclude that

there was any medical negligence or deficiency in service in the treatment of the

patient.  The Appellants, who are well-qualified doctors treated the patient as per their

best professional judgment and on the basis of diagnostic and clinical tests from a well-

equipped laboratory.  As stated earlier, the Respondent has not been able to controvert

or contradict the above facts through any credible evidence, including that of a medical

expert before the State Commission.  In view of these facts, we are unable to uphold

the order of the State Commission concluding that there was medical negligence

against the Appellants and, therefore, set aside the same.  We note that Rs.1 Lakh out

of the total compensation of Rs.3 Lakhs awarded by the State Commission has already

been released to the Respondent.  Counsel for Respondent states that this may be

treated as ex-gratia payment and not be recovered from the Respondent.  Ordered

accordingly. 

11.     The first appeal is allowed on the above terms.   

 Sd/-

(ASHOK BHAN, J.)

PRESIDENT

 

 

Sd/-

(VINEETA RAI)

MEMBER 

Sd/-

(REKHA GUPTA)

MEMBER

 Mukesh

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO.   435 OF 2011 (From the order dated 20.10.2010 in Appeal No.1601/03 of the U.P. State Consumer

Disputes Redressal Commission, Lucknow)

 

Ghaziabad Development Authority Through its Vice Chairman Vikaspath, Ghaziabad                                                                              …        Petitioner/OP

                                        Versus Satya Narayan R/o Gyan Khand-4/144-A, HIG D/S, First Floor, Indirapuram Ghaziabad

…    Respondent/Complainant

 

BEFORE

 

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

 

          For the Petitioner             :         Mrs. Reena Singh, Advocate

          For the Respondent         :         Mr. Pankaj Sharma, Advocate

 

PRONOUNCED ON 21 st   January ,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER

          This revision petition has been filed against the order dated 20.10.2010 passed

by the U.P. State Consumer Disputes Redressal Commission, Lucknow (in short, ‘the

State Commission’) in Appeal No. 1601 of 2003 – GDA Vs. Satya Narayan Tyagi by

which while dismissing appeal, order of District Forum allowing complaint was affirmed.

2.       Brief facts of the case are that complainant/respondent was allotted House No.

144/A in Gyan Khand 4 of Indirapuram Scheme at the estimated price of Rs.5,50,000/-

and complainant was required to deposit the entire amount by 15.10.1998, but he

deposited the entire payment by 15.7.1997 and obtained possession of the house. After

3 years and 3 months, petitioner/OP asked the complainant to deposit additional

Rs.1,95,645/- and Rs.922/- as earlier price was only tentative.  Complainant further

alleged that after getting possession of the house, OP has neither fixed a brick nor put a

nail in the house but demanded money and under compelling circumstances, under

protest complainant deposited money with the OP.  In such circumstances, complainant

filed complaint for refund of the aforesaid money.  OP did not file written statement

before the District Forum and District Forum proceeded ex-parte against OP, but OP

filed written arguments and learned District Forum after considering written arguments

filed by OP allowed complaint and directed the petitioner/OP to refund the aforesaid

amount along with 8% p.a. interest.  Petitioner filed appeal before the learned State

Commission which was dismissed by impugned order against which this revision

petition has been filed.

3.       Heard Learned Counsel for the parties and perused record.

4.       Learned Counsel for the petitioner submitted that as per affidavit given by the

complainant he was bound to deposit the increased cost of the house and learned

District Forum has committed error in allowing refund of the aforesaid amount and

learned State Commission has also committed error in dismissing appeal, hence,

petition may be accepted and orders of learned State Commission and District Forum

be set aside.  On the other hand, learned Counsel for the OP submitted that order

passed by learned State Commission is in accordance with law, as price cannot be

escalated after giving possession of the flat and in such circumstances, revision petition

be dismissed with cost.

5.       It is admitted fact that house was allotted to the complainant at the estimated cost

of Rs.5,50,000/-.  This amount was to be deposited by complainant in

instalments upto15.10.1998, whereas the complainant deposited entire amount by

15.7.1997 and obtained possession of the house.  Demand notice for extra money was

sent by OP after 3 years 3 months.  OP has not filed written submissions before the

District Forum and learned District Forum proceeded ex-parte against the OP and

rightly allowed the complaint and directed OP to refund extra money demanded by OP

and deposited by complainant under protest.  No doubt, affidavit was given by

complainant on 15.4.1997 stating that if in future cost of the house is  increased, he will

deposit the same in accordance with rules.  Learned Counsel for the petitioner could not

show any rule on what basis price was increased.  Price could have been escalated

only on the ground of increase of payment of compensation for the land acquired but

learned Counsel for the petitioner admitted that compensation has not been

increased.  In such circumstances, there was no occasion to increase the price of

house, particularly, when complainant had deposited the entire amount before 15

months of payment schedule.  Learned State Commission has not committed any error

in dismissing appeal of the petitioner and in such circumstances, revision petition is

liable to be dismissed. 

6.       Consequently, revision petition filed by the petitioner is dismissed with no order

as to cost.                                                                         ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER 

 

..…………Sd/-…………………

( K.S. CHAUDHARI, J)

 MEMBERK

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION   PETITION     NO . 4391 OF 2012

(From the Order dated 29.06.2012 in Appeal No. 664/2011 of 

Haryana  State Consumer Disputes Redressal Commission, Panchkula)

 

Manoj Banerjee S/o Sh. Moti Lal Banerjee R/o H.N.482, Professor Colony Ambey Gas Godown Road Yamuna Nagar, Tehsil Jagadhri District Yamuna Nagar, Haryana

Petitioner

  Versus

                                         

Oriental Insurance Co. Ltd. Opp. Madhu Hotel, Jagadhri Road Yamuna Nagar, Tehsil Jagadhri District Yamuna Nagar, Haryana (Through its authorized signatory Chief Regional Manager) 

Oriental Insurance Co. Ltd. Regional Office, LIC Building 2nd Floor, Jagadhri Road Ambala Cantt-133001

Respondent

                                                                                    

BEFORE:                   HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

       HON’BLE MR. SURESH CHANDRA, MEMBER

 

 

For the Petitioner                           :              Mr. Abhishek Garg, Advocate 

 

 Pronounced   on :       21 st   January, 2013

 

PER SURESH CHANDRA, MEMBER

There is a delay of 40 days in filing this revision petition. For the reasons stated

by the petitioner in his condonation application, the delay stands condoned.

2.         This revision petition has been filed by the petitioner/complainant against the

order dated 29.6.2012 passed by the Haryana State Consumer

Disputes Redressal Commission, Panchkula (‘State Commission’ for short) by which the

State Commission had reversed and set aside the order dated 11.4.2011 passed by the

District Forum, Yamuna Nagar in complaint No.73 of 2010 and allowed the appeal of

the opposite party/respondent Insurance Co. while nonsuiting the claim of the petitioner.

3.         The brief facts of this case as emerging from the record are that the truck

bearing Regn. No.HR-58-A-9306 of the complainant was insured with the OP Insurance

Co. for the period from 10.10.2008 to 9.10.2009. On 23.3.2009, the truck met with an

accident at Shillong in Meghalya State and was burnt. D.D.R. No. 332 dated

23.3.2009 was registered at the police stationSohryngkham. Intimation was also given

to the OP Insurance Co. which appointed a surveyor who inspected the vehicle and

submitted his report. The claim of the complainant submitted to the Insurance Co. was,

however, repudiated by the OP Co. on the ground that the vehicle was driven in the

area of Meghalya without any valid route permit because the complainant had obtained

the route permit only for the State of Haryana, Punjab, U.P and Uttrakhand. It was

further stated that the vehicle was loaded with  Wax which is a hazardous item and

the  driver of the vehicle was not carrying any valid and effective driving licence to drive

the vehicle loaded with hazardous items. Challenging the repudiation of his claim, the

complainant filed a consumer complaint before the District Consumer Forum, Yamuna

Nagar.

4.         On being noticed, OP appeared and contested the complaint by filing written

statement wherein it justified the repudiation and prayed for dismissal of the complaint.

On appraisal of the pleadings of the parties and the evidence adduced on record, the

District Forum accepted the complaint with the following observations:-

“…… As per report of the Surveyor Annexure R-11 at para No. 4 page No. 2 it is clearly mentioned that the insurer was having valid route permit for Haryana, U.P, Bihar, Assam, Meghalaya and Tripura, so first ground for repudiating the claim by respondent is not sustainable…………”              Secondly Learned counsel for the respondent took the plea that the vehicle of the complainant as carrying wax and to carry chemical in any vehicle a person to obtain a permit particularly for hazardous goods.  The respondent failed to prove wax is a hazardous goods. Neither the surveyor has pointed out regarding wax fall under the definition of Hazardous nor he touch this point in his report.  So argument of the respondent on this ground is not tenable………” 

5.         In view of the aforesaid observations, the District Forum granted the following

reliefs to the complainant:-

“………. Admittedly the vehicle was insured with the respondent for the relevant time for Rs.8,40,000/-. According to the report of Surveyor  there is a total loss of the vehicle.  The scrap of the truck have also been stolen. The accident took place within 6 months of obtaining the insurance cover and we allow depreciation at the rate of 5% on the vehicle and direct  the respondent to pay a sum of Rs. 7,98,000/- along with interest at the rate of 12% per annum from 14.07.2009 i.e. after two months from the receipt of Surveyor report till actual payment and the respondent is further directed to pay a sum of Rs.10,000/- as cost of proceedings. Order be complied within 30 days after preparation of copy of this order failing which penal action under section 27 of the Consumer Protection Act will be initiated.”

 

6.         Aggrieved by the above order of the District Forum, the OP Insurance Co. went

in appeal before the State Commission which allowed the same and set aside the order

of the District Forum. Aggrieved by the impugned order, the complainant has now filed

the present revision petition against the order of the State Commission.

7.         It is seen from the impugned order that the State Commission has nonsuited the

claim of the petitioner keeping in view the admission on the part of the petitioner that the

truck had entered into the area of Meghalya without any valid route permit. It is

observed that the report received from the Regional Transport Authority, Yamuna Nagar

also indicated that the complainant had obtained the route permit only for Haryana,

Punjab, U.P. and Uttrakhand. Considering these admitted facts, the State Commission

has accepted the appeal of the OP Insurance Co. applying the ratio laid down by the

National Commission in the judgement dated 9.11.2010 rendered in R.P. No 2976 of

2006 (United India Insurance Co. ltd.   Vs .   Trilok   Kaushik ) . We agree with the view

taken by the State Commission in its impugned order which is in line with the view taken

by the National Commission. It is well-established in the light of various judgements of

the Apex Court that the terms and conditions of the insurance policy have to be

construed strictly and if there is any violation of the terms, the party cannot claim any

relief. Mr. Abhishek Garg, Advocate, learned counsel for the petitioner has tried albeit

unsuccessfully persuaded us to accept the claim of the petitioner on non-standard basis

but in view of the settled position of law, we cannot accept this request. The facts and

circumstances of the two cases relied upon by the learned counsel for the petitioner in

the cases of G.   Kothainachiar   Vs. Branch Manager United India Insurance Co. Ltd.

&   Ors .  [R.P. No.1503 of 2004] decided on 29.10.2007 by the National Commission

and Oriental Insurance Co. Ltd.   Vs .   Banto   Devi &   Ors . [2007 (1) T.A.C. 1000

(P&H) decided by the High Court of Punjab and Haryana were different and hence the

same cannot be applied to the present case. Consequently, we do not find any merit in

the present revision petition which would justify our interference with the impugned

order. The revision petition, therefore, stands dismissed at the threshold with no order

as to costs.

..……..………Sd/-……..……….

     (K.S. CHAUDHARI, J.)

                                                                                                             PRESIDING MEMBER

 

 

……..………Sd/-………………

                                                                            (SURESH CHANDRA)

                                                                                                                            MEMBER

SS/

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

 REVISION PETITION NO.     2448   OF     2012  (Against the order dated 08.05.2012 in First Appeal No. 7 of 2011 of the

Goa State Consumer Disputes Redressal Commission,Panaji)

 

M/s Transasia Bio-Medicals Ltd. (through Authorised representative Mr. Transasia House, 8 Chandivali Studio Road, Mumbai- 400072

                                              ... Petitioner

VersusDr. D. J. Desouza, Proprietor, Clinical Laboratory, “Luz Lab” Libania Building, New Market, Margao, Goa 

                                ... Respondents

BEFORE:

  HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER

  HON’BLE MR. VINAY KUMAR, MEMBER

 

       For the Petitioner              :  Ms. Anjali Manish, Advocate with                                               Mr. Priyadarshi Manish, Advocate                                               Mr. Apoorva Rajnish, Advocate 

Pronounced   on :     22 nd           January, 2013 ORDER

 

JUSTICE J. M. MALIK, PRESIDING MEMBER

1.      The respondent is absent despite service.  The learned counsel for the

respondent submits that a sum of Rs.10,000/- has already been paid to him and despite

accepting the same he has not turned up.  He be proceeded against ex parte.  The

counsel for the petitioner heard at length.

2.      On 4th December, 2001, Dr. D. J. De Souza, complainant/respondent had

purchased a Erba Chem 5 Plus auto analyzer, 2001 model (No. 103741) for a sum of

Rs.1,35,800/-.  The same was installed on the same day.  The complainant noticed that

the second auto analyzer was not functioning properly and brought this fact to the notice

of the petitioner-Engineer on or about 19.10.2001 i.e. within 15 days of the purchase of

the machine.  The complainant also wrote a letter to the petitioner that second

auto analyser was defective specially in the kinetic mode.  The complainant asked for

the replacement or in the alternative, he would approach the consumer forum by

31.10.2001.  Vide letter dated 16.11.2001, the complainant wrote to the petitioner that

he was not interested in having the said defective instrument in his laboratory nor he

was interested in having a replacement of the same.  He required the petitioner to return

his amount in the sum of Rs.1,35,800/- lakh.

3.      On 20.12.2001, the petitioner filed a complaint before the District Forum.  The

District Forum allowed the complaint.  The opposite party was directed to refund

Rs.1,35,800/- being the purchase price of the medical instrument with interest @12%

from the date of its purchase till actual payment.  The opposite party was further

directed to pay to the complainant consolidated amount of Rs.10,000/- as

compensation/damages on the ground of mental tension, anxiety, loss of professional

income, inconvenience and hardship suffered by the complainant.

4.      Aggrieved by that order, the opposite party preferred an appeal before the State

Commission.  The State Commission modified the order and directed the complainant

to refund the purchase price of Rs.1,35,800/- with interest at 6% from 20.12.2001 until

payment plus damages/compensation of Rs.5,000/-. The complainant was also directed

to return the second auto analyzer to the opposite party.

5.      We have heard the learned counsel for the petitioner.  She contended that there is

no report of the expert that machine in question is defective.  However, record reveals

that the District Forum had appointed Dr.. Asha Naik as Commissioner in this

case.  She filed her report dated 25.1.2006 and 2.2.2006 stating that the second

auto analyser was not fit for lab test in kinetic mode.  At the request of the opposite

party, the said doctor was also cross examined.  The contention raised by the opposite

party that he was not informed about the inspection by Dr. Asha Naik was given a short

shrift as the District Forum had already directed both the parties to remain present

before the Commissioner on 25.1.2006 at 10.00 a.m.

6.      Learned counsel for the petitioner vehemently argued that they are ready to

replace the machine.  The case pertains to the year 2001.  The machine is with the

complainant.  The complainant never signified his willingness for replacement of his

machine. 

7.      The argument advanced by learned counsel for the petitioner does not carry any

conviction.  This is not a matter of new machine.  This is the second hand

machine.  There is a marked difference between the new machine and old

machine.  What is the guarantee that the second hand machine will have no defect. The

facts of this case speak for themselves.  Within 15 days of availing the machine, the

defects were detected.  The petitioner should have returned the money after 15 days.

8.      Under the circumstances, the order of the State Commission cannot be faulted.

The revision petition is, therefore, dismissed. 

……………Sd/-……..………..

     (J. M. MALIK, J)

   PRESIDING MEMBER

 

……………Sd/-….……………

                                                        (VINAY KUMAR)

                                                                            MEMBER

Naresh/             

  

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI

CONSUMER COMPLAINT NO.     145 OF 2012

1. The Society for Consumers’ and investors Protection (SCIP) 118, IInd Floor, DDA Site-1 New Rajinder Nagar, New Delhi-110060 2. M/s Sampark Securities Pvt. Ltd. 1E/18, 4th Floor, Jhandewalan Extension, New Delhi-110055 3. Mr. Ankur Sachdeva 1E/18, 4th Floor, Jhandewalan Extension, New Delhi

                                                       … Complainant (s) 

                                       Versus 

Haryana State Industrial & Infra Development Corporation Limited, C-13-14, Sector-6,Panchkula, Haryana

                                        … Opposite Party (s) BEFORE:

HON’BLE MR.JUSTICE  J. M. MALIK, PRESIDING MEMBERHON’BLE MR.VINAY KUMAR, MEMBER

For the Complainant(s)                            ….. Mr. B. R. Sachdeva, Advocate For the Opp. Party                          ….. Mr. Ravindra Bana, Advocate           Pronounced on       22 nd     January , 2013  

                                                O R D E R

JUSTICE J. M. MALIK, PRESIDING MEMBER

1.      We have heard learned counsel for the parties on the maintainability of this

case.  Learned counsel for the opposite party vehemently argued that this is a case of

open auction.  The plot was taken on ‘as is where is basis’.  Learned counsel for the

opposite party vehemently argued that under the circumstances, the complainants are

not the consumers as per law laid down in UT Chandigarh Administration and

another vs.   Amarjeet   Singh and   Ors .   2009(4) SCC 660.   Learned counsel for the

opposite party invited our attention towards paras 18, 19, 20 and 21 of the said

authority.  He contended that under the circumstances, the present complaint is not

maintainable. 

2.      On the other hand, learned counsel for the complainant invited our attention

towards the orders of this Commission in Haryana Urban Development Authority

(HUDA) and another vs. M/s   Suneja   and Sons, revision petition No. 2951 decided

on 18.8.2011 and Rajil   Khod   vs. Haryana Urban Development Authority through

Estate Officer,   Hisar , revision petition No. 729 of 2011 decided on

18.11.2011 wherein it was held that in the peculiar facts and circumstances of the case,

the above said authority is not applicable.  This Commission also referred two Supreme

Court authorities in H.U.D.A. & Anr . Vs.   Satish   Hans 2009(7)

SCC   282     and  Madan   Kumar Singh vs. District Magistrate,   Sultanpur   IV (2009)

SCPJ 3 (SC) decided on 29.4.2009 and 7.8.2000, respectively.  In the said cases, the

Apex court did not set aside the orders of this Commission on the ground that the

complainant being an auction purchaser could not at all qualify as a

consumer.  However, the Apex Court remanded the case back to this Commission.

3.      In view of this discussion, the complainants have produced enough material for

admission of this case.  The case is, therefore, admitted but it is made clear that the

above said question requires investigation and evidence.  The same question cannot be

disposed of at this initial stage whether  the petitioner is a consumer for the above said

reason or whether this is a commercial transaction or a transaction for self

employment is being kept open.  This will be decided at the final stage.  The case is,

therefore, admitted and the opposite party is directed to file counter till 6.3.2013. 

The case is fixed for filing of the written statement on 6.3.2013.

Copy of this order be sent to both the parties immediately.

 

.…..…………Sd/-………………

(J. M. MALIK, J)

   PRESIDING MEMBER 

………………Sd/-……………...

(VINAY KUMAR)

MEMBER

Naresh/reserved

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

 

REVISION PETITION NO.   1387 OF 2011 (From the order dated 17.03.2011 in Appeal No. 286/2010 of the State Consumer

Disputes Redressal Commission, UT Chandigarh)

 

Prof. Arun K Lall House No.653 Punjab Engineering College Campus Sector 12 Chandigarh – 160 012                               …                    Petitioner/OP

                                       Versus

 

The Manager Credit Card Section M/s. ICICI Bank Ltd. SCO 180 – 182 Sector 9-C, Chandigarh – 160 017                    …   Respondent/Complainant

   

BEFORE

 

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

 

For the Petitioner      :      NEMO

For the Respondent :       NEMO        

 

PRONOUNCED   ON     22 nd   January,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER

          This revision petition has been filed by the petitioner against the order dated

17.3.2011 passed by the Karnataka State Consumer Disputes Redressal Commission,

Bangalore (in short, ‘the State Commission’) in Appeal No. Appeal No. 286/2010

– Prof. Arun K. Lall Vs. The Manager, Credit Card Section by which appeal for

enhancement of compensation was dismissed and order of District Forum allowing

complaint with compensation was affirmed.

2.       Brief facts of the case are that petitioner/complainant and his wife used  credit

card of respondent/OP bank from 2001 to 2004 and after depositing final amounts of

Rs.6875/- and Rs.1040/- on 1.10.2004 and 12.10.2004 respectively, closed credit

card.  On 19.7.2008, complainant received a phone from Delhi Police who apprised the

complainant that non-bailable warrants have been issued against him and further

directed him to contact Mr. Sunit Soni, Advocate for getting further details.  Complainant

contacted Mr. Soni and as per his advice complainant deposited Rs.4422/- with ICICI

Bank shown outstanding against him on the very day i.e. 19.7.2008.  In spite of

repeated requests, opposite party did not supply him details of outstanding payment,

though, complainant had already cleared dues while closing credit card and as such,

alleging deficiency, filed complaint before the District Forum. Opposite party contested

complaint and submitted that account of outstanding amount due against the

complainant as per statements Annexure C3 and C4 have already been provided to the

complainant and complainant has deposited only outstanding amount on

19.7.2008.  Allegation of information regarding non-bailable warrants was also denied.

District Forum after hearing both the parties allowed complaint and directed

OP/respondent to refund Rs.4422/- along with Rs.10,000/- as compensation and

Rs.5,000/- as litigation charges. Petitioner not satisfied with the compensation awarded

to him filed appeal against the order of the District Forum which was also dismissed by

impugned order.

3.       Petitioner did not appear at admission stage but requested by circulating a letter

dated 2.1.2013 to dispose of the petition.

4.       Perused record.

5.       Learned District Forum while allowing refund of Rs.4422/- awarded compensation

of Rs.10,000/- and further awarded Rs.5,000/- as cost of litigation.  Learned State

Commission has rightly observed that object of Consumer Protection Act is not to enrich

the complainant at the cost of the service provider and its object is only to adequately

compensate the consumer.  Learned State Commission observed that petitioner’s case

was not a fit case in which punitive damages should be awarded to him and in such

circumstances, appeal was dismissed.

6.       We do not find any jurisdictional error or material irregularity in the order of

learned State Commission in upholding compensation awarded by the District Forum

and not enhancing the compensation.  Petitioner has drawn our attention towards

compensation awarded by District Forum in other similar case.  As per the statement, in

another case Rs. 50,000/- were awarded by the District Forum on 6.8.2008 to the

complainant Premendu Roy whereas only Rs.10,000/- have been awarded to the

petitioner in order dated 14.7.2010. He could not supply details of order passed by State

Commission in Premendu Roy case.  In such circumstances, the comparison of his

case with Premendu Roy cannot benefit him, as there is no illegality or material

irregularity or jurisdictional error in not enhancing compensation.  Revision Petition is

liable to be dismissed at admission stage.

7.       Consequently, the revision petition filed by the petitioner is dismissed at

admission stage with no order as to costs. 

                                                                         ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER 

 

..…………Sd/-…………………

( K.S. CHAUDHARI, J)

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

 

REVISION PETITION NO. 2452 OF 2011(From the order dated 28.06.2011 in Appeal No. 1727/2011 of the Karnataka State

Consumer Disputes Redressal Commission, Bangalore)

 

M.R. Anand Prabha S/o Late Ramachandra Shetty Archana Finnace Neem Street Now R/at Shariff Street Chikmagaluru Karnataka State

                                                            …                    Petitioner/OP

                                        Versus Smt. Sreelakshmi W/o Ravindra Venkateshwara Medicals Chikmagaluru Karnataka State

                                              …   Respondent/Complainant

   BEFORE

 HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

 

For the Petitioner      :      Mr. Anand Sanjay M. Nuli, Advocate

For the Respondent:        NEMO

PRONOUNCED ON     22 nd     January,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER           This revision petition has been filed by the petitioner against the order dated

28.6.2011 passed by the Karnataka State Consumer Disputes Redressal Commission,

Bangalore (in short, ‘the State Commission’) in Appeal No. Appeal No. 1727/2011 –

M.R. Anand Prabhakar Vs. Smt. Sreelakshmi by which application for condonation of

delay and appeal filed by the petitioner/OP was dismissed.

2.       Brief facts of the case are that complainant/respondent filed complaint and

alleged that he kept some amount in four fixed deposits with the petitioner/OP and OP

agreed to pay interest @ 24% p.a.  OP did not return money, hence, after giving notice

filed complaint for recovery of Rs.3,09,400/-.  OP contested complaint but learned

District Forum vide its order dated 26.7.2010 partly allowed complaint and petitioner

was directed to refund a sum of Rs.1,77,000/- with interest @ 12%  p.a.  Against this

order petitioner filed appeal with a delay of 283 days and also moved application for

condonation of delay which was dismissed by the impugned order and in consequence

thereof appeal was also dismissed.

3.       Heard learned Counsel for the petitioner and perused record.4.       Petitioner moved application for condonation of delay of 283 days before the

State Commission on the ground that he had no personal income and he was

dependent on his son who is an Engineer, got job in a multinational company 3 months

back so he could not arrange Rs.25,000/- for filing appeal. In his affidavit he further

submitted that he had also preferred two appeal Nos. 421 & 422 of 2010 before the

State Commission against other orders of District Forum and State Commission

directed him to deposit Rs.25,000/- in each appeal but he could not arrange funds and

his aforesaid appeals were also dismissed by State Commission.  Learned State

Commission has rightly observed in its order that reasons assigned by the petitioner for

condonation of delay does not constitute sufficient cause for condonating inordinate

delay of 283 days.  Learned State Commission has not committed any error in rejecting

application for condonation of delay and in dismissing appeal.

5.       Learned Counsel for the petitioner further submitted that petitioner had already

undergone 3 months imprisonment, as he failed to deposit money with the District

Forum.  This cannot be the ground for admitting revision petition, as we do not find any

infirmity in the order passed by learned State Commission in disallowing application for

condonation of inordinate delay of 283 days.

6.       Consequently, the revision petition filed by the petitioner is dismissed at

admission stage with no order as to cost. 

                                                                         ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER 

 

..……………Sd/-………………

( K.S. CHAUDHARI, J)

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION  NO. 1032  OF  2012

(Against the order dated 13.10.2011 in First Appeal No. 2294/2006of the State Commission Haryana, Panchkula)

 

Jiwan Spinners Pvt. Ltd. Delhi Sanoli By Pass Opposite Sector – 25 Panipat, HaryanaThrough The Director Shri Ashok Singla

........ Petitioner 

Vs.

New India Insurance Co. Ltd. Regd. Office At SCO No.36-37, Sector-17A, Chandigarh

......... Respondent

BEFORE:

 HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

 HON’BLE MR.SURESH CHANDRA, MEMBER

For the Petitioner             :    Shri Vinod Kumar, Advocate

For the Respondent         :    Shri Abhishek Kumar, Advocate

Dated :       22 nd   January, 2013

ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision petition is directed against the order of State Consumer Disputes

Redressal Commission Haryana, Panchkula ( for short, ‘the State Commission’) dated

13.10.2011.

2.       Briefly stated facts relevant for disposal of this revision petition are that the

petitioner – company got insured stock of raw material, finished goods as also building

and machinery with the respondent-opposite party vide two insurance policies which

were valid for the period 24.02.2004 to 23.022005.  Due to fire accident on 04.03.2004,

the stock in process, material stocked in the factory and the card machine got

damaged.  The matter was reported to the P.S.Chandni Bagh Panipat on

05.03.2004.  The opposite party appointed a surveyor who submitted his report to the

insurance company estimating the loss due to fire as Rs.7,73,059.39P.  It is alleged that

the insurance company, however, paid a sum of Rs.2,15,176/- to the petitioner through

a cheque no.105857 dated 07.09.2004 and the payment of balance amount of loss was

illegally denied to the petitioner.  Thus there was deficiency in service on the part of the

opposite party.

3.       The opposite party in his written statement denied the allegations of the petitioner

and submitted that the petitioner had voluntarily accepted Rs.2,15,176/- as full and final

settlement of his claim.  The opposite party also denied that petitioner – company was

forced to sign unfilled form  of settlement by the insurance company and that there was

any deficiency in service on the part of the respondent.

4.       The District Forum vide its order dated 25.08.2006 came to the conclusion that

the petitioner was coerced to accept the amount of Rs.2,15,176/- and sign unfilled form

and blank papers.  Accordingly, the District Forum allowed the claim of the petitioner

and directed the respondent – opposite party to pay a sum of Rs.4,60,380/- to the

petitioner on account of loss of stock and machinery as per Surveyor Report together

with interest @ 18%  from 31.08.2004 till the realisation of the amount.

5.       Aggrieved by the order of the District Forum, respondent / opposite party

preferred an appeal before the State Commission and the State Commission came to

the conclusion that the petitioner had accepted a sum of Rs.2,15,176/- in full and final

settlement of his claim under the insurance policies and signed the discharge voucher

voluntarily.  Thus, the State Commission accepted the appeal and reversed the order of

the District Forum.

6.       The petitioner being aggrieved of the order of the State Commission has

preferred this revision petition.

7.       It is contended on behalf of the petitioner that the State Commission has passed

impugned order in complete disregard of the settled law and failed to consider the ratio

of judgment of the Supreme Court in United India Insurance Vs. Ajmer Singh Cotton

& General Mills & Ors. 1999 (II) CPJ 10 SC.  It is contended that State Commission in

the aforesaid judgment has held that the consumer forum can impose liability upon the

insurance company notwithstanding execution of Discharge Voucher by the insured

provided the Discharge Voucher has been obtained by the insurance company by

resorting to fraud, pressure, undue influence or coercion.  Learned counsel further

submitted that the State Commission has failed to appreciate that as per the report of

the respondent’s own Surveyor, the loss was quantified at Rs.7,73,059.39P and if that is

so, the petitioner could not have accepted Rs.2,15,176/- in full and final settlement of

discharge of his claim unless there was undue influence and coercion exerted upon the

petitioner.

8.       Learned counsel for the respondent on the contrary has contended that there is

no evidence on record to suggest that the signatures of the petitioner were obtained on

the Discharge Voucher by practicing fraud, undue influence or coercion.  Therefore, as

per the law laid down in the judgment relied upon by the petitioner, after having settled

the matter and taken cheque of Rs.2,15,176/-, the petitioner now cannot re-agitate the

matter and claim further amount under the insurance claim.

9.       The only question which requires consideration in this revision petition is whether

or not the Discharge Voucher mentioning payment of Rs.2,15,176/- in full and final

settlement of the claim of the petitioner was obtained by the respondent by practicing

fraud, misrepresentation or coercion?

10.     We have considered the rival contentions and perused the record.  The case of

the petitioner as set up in para 6 of the complaint, copy of which is placed on record is

that the officials of the respondent-company forced the complainant to sign blank

unfilled form as a pre condition to give the cheque to him and they threatened that if the

petitioner failed to sign the blank forms, no cheque would be issued to him against his

claim.  This allegation of the petitioner is belied by the averments in the registered

notice dated 04.12.2004 sent to the opposite party by the petitioner wherein it is alleged

that the respondent-company took almost seven months in deciding the claim of the

petitioner and during that period, harassed and mentally tortured him.  It is also alleged

in the notice that the amount of Rs.2,15,176/- was accepted by the petitioner under

protest and pressure reserving the right to recover the balance amount from the

respondent – company. It is nowhere mentioned in the notice that the petitioner was

threatened by the officials of the respondent – company that if he failed to sign the blank

forms, no cheque would be delivered to him and he would not be paid anything against

the claim.  This material contradiction in the stand taken by the petitioner in notice dated

04.12.2004 and his complaint lead us to the obvious conclusion that the stand of the

petitioner in his complaint is an after thought with a view to exhort further money after

having received a cheque from the respondent in full and final settlement of his

claim.  We may note that on perusal of copy of the discharge voucher we found that

petitioner has accepted the cheque in full and final settlement of his claim without any

protest.

11.     On perusal of the impugned order, we find that the State Commission on

consideration of the Discharge Voucher dated 31.08.2004 signed by the petitioner and

acceptance of the cheque of Rs.2,15,176/- in full and final settlement of claim, allowed

the appeal and dismissed the claim of the petitioner with following observations:

“DISCHARGE VOUCHER

        Received from the New India India Assurance Company Limited, the sum of Rs.2,15,176 ( Two Lakh fifteen thousand one hundred and seventy six only which I / We agree to accept in full satisfaction and discharge or all claims present or future under policy no.353900/11/03/00048 / 353200/11/03/02711 in respect of which occurred on or about the _____ day of ______ year _________.

Sd/-For Jiwan Spinners Pvt. Ltd.

Director / Manager

 

        Having considered the facts and circumstances of the case and the ‘Discharge Voucher’ dated 31.08.2004.  We find force in the contention r raised on behalf of the appellant – opposite party.  It is well settled law that once the claim has been accepted by the claimant without any objection by signing discharge voucher in full and final settlement of claim offered by the Insurance Company, thereafter, the claimant cannot be allowed to reopen his claim seeking any further relief. However, mere execution of consent letter in the form of letter of indemnity cannot deprive the claimant of consequential relief if discharge voucher was obtained by fraud, misrepresentation or under coercion.  There is no evidence on behalf of the complainant that any fraud or misrepresentation or coercive method was adopted by the Insurance Company upon the complainant at the time of signing the discharge voucher dated 31.08.2004 and as such the complainant is not entitled for any further compensation.

        Admittedly, the complainant, is running a business of raw material, finished goods, semi finished goods which are used in the mill and must have signed the discharge voucher dated 31.08.2004 with full knowledge after going through the contents mentioned therein and therefore question of any pressure tactics by the opposite party upon the complainant does not arise.  The District Consumer Forum has not appreciated the facts of the present case in its true perspective and committed error in allowing the complaint.

        As a sequel of our aforesaid discussions, this appeal is accepted, the impugned order is set aside and the complaint is dismissed”. 

12.     In view of the above, we do not find any legal or factual infirmity in the impugned

order of the State Commission which may call for interference by this Commission in

exercise of revisional jurisdiction.  Accordingly, revision is dismissed with no order as to

costs.

                                                                ………………………….

     (AJIT BHARIHOKE)      ( PRESIDING MEMBER)

 

                                                                   …………………………                                                        (SURESH CHANDRA)                                                                            MEMBER

Am/

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION  NO. 3353  OF  2011

(Against the order dated 28.04.2011 in Appeal No. 918/2009of the State Commission Madhya Pradesh, Bhopal)

 

M/s Mahindra & Mahindra Financial Services Ltd. 2nd Floor, Sadhna House 507, P.B.Marg, Worli Mumbai – 400018 Through its Authorized signatory Samarjeet Khokhar Legal Executive Branch Office Aggarwal Corporate Tower3rd & 4th Floor, plot No.23 Rajindra Place, New Delhi – 110008

....... Petitioner 

Vs.

Naresh Singh 204, Princess Price Building Janjeer Wala Chauraha Indora, M.P.

......... Respondent 

BEFORE:

 HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

 HON’BLE MR.SURESH CHANDRA, MEMBER

For the Petitioner                  :     Mr.Amit Singh and Mr.Rajan Singh, Advocates

Dated :     23 rd           January, 2013

ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

            The petitioner being aggrieved by the order of M.P.State Consumer

Disputes Redressal Commission ( in short, ‘the State Commission’) has preferred this

revision petition.  Alongwithrevision petition, the application for condonation of delay of

71 days in filing of revision petition has been filed.

2.         Briefly stated facts of the case are that the petitioner (opposite party) provided a

loan of Rs.3,50,000/- to the complainant – respondent for purchase of a Mahindra

Tourist vehicle on hire purchase basis.  The loan amount was to be paid in 34

instalments.  It was agreed that the first instalment would be of Rs.24,500/- and

remaining instalments would be of Rs.12,250/- each.

3.         According to the respondent-complainant, he had paid all the instalments

against loan during the period w.e.f.01.06.2004 to 02.09.2005.  Despite of that the

petitioner repossessed the vehicle on 23.10.2005 without giving notice, on the ground

that a sum of Rs.4,29,000/- was outstanding against the loan and sold the vehicle

without any notice to the respondent for a sum of Rs.2,50,000/-.  On the aforesaid

averments, the respondent filed complaint claiming a sum of Rs.82000/- as

compensation and also for other charges.

4.         The petitioner admitted that they had financed Rs.3,50,000/- for purchase of

vehicle by the opposite party.  The petitioner, however, denied that the respondent had

paid the instalments regularly.  It was claimed by the petitioner that on 23.10.2005, a

sum of Rs.85,650/- was outstanding against the respondent and, therefore,  the vehicle

was possessed in a lawful manner and sold.  The petitioner denied deficiency of service

on his part.

5.         The District Forum after considering the evidence came to the conclusion that

the possession of the vehicle was taken by the petitioner without informing the

respondent about any amount outstanding against him and, thereafter, the vehicle was

unlawfully sold without notice.  Thus, the District Forum awarded a sum of Rs.42,000/-

as compensation to the respondent besides Rs.15000/- as the amount spent on

obtaining permit and registration and Rs.1000/- as cost.

6.         Being aggrieved by the order of the District Consumer Forum, the petitioner

preferred an appeal which was dismissed by the State Commission.

7.         It is against the aforesaid dismissal of his appeal, the petitioner has preferred

the revision petition.  He has also filed the application for condonation of delay of 71

days in filing the revision petition. 

8.         Learned counsel for the petitioner has contended that the delay caused in filing

of revision petition is unintentional.  Actually the documents received from the office

were not legible. Therefore, the counsel for the petitioner asked for the original copies of

those documents from Bombay Head Office of the petitioner – company.  It took some

time in tracing the original documents and, thereafter, the documents were received

back in the local office of petitioner in third week of September which were then

transmitted to the Advocate for drafting the preparation of revision petition.  It is further

contended that some of the documents were in Hindi, therefore, sometime was taken in

getting those documents translated in English. Thus it is contended that delay caused in

filing of revision petition is not deliberate and it has occurred because of the aforesaid

reason.  Learned counsel for the petitioner thus urged us to condone the delay in filing

of revision petition.

9.         We are not convinced with the submissions made on behalf of the petitioner,

firstly, for the reason that the explanation given in the application for condonation of

delay in filing of revision petition is vague.  The application does not disclose the name

of the counsel for the petitioner who insisted for original copies of the documents.   It

also does not disclose various dates of the movement of papers and the date on which

the counsel for the petitioner asked for original copies.  It also does not disclose the

date on which the original documents were traced and also the date on which the

documents were sent to the Advocate for drafting the preparation of revision

petition.  Further, we may note that the application for condonation of delay is not even

supported by affidavit of either some responsible officer of the petitioner – company or

the concerned Advocate.  Law relating to the condonation of delay in filing of suit or

petition after the expiry of period of limitation is well settled.  The condonation of delay

cannot be as a matter of routine and the petitioner in such cases is required to explain

the delay for each and every date after the expiry of period of limitation. In the matter

of Anshul   Aggarwal   Vs.   New   Okhla   Industrial Development Authority IV (2011)

CPJ 63 (SC), the Hon’ble Supreme Court has held that while deciding an application

for condonation of  delay, the Court has to keep in mind that the special period of

limitation has been prescribed under the Consumer Protection Act for filing appeals and

revisions in consumer matters and the object of expeditious adjudication of the

consumer disputes will get defeated if this Court was to entertain highly belated

petitions filed against the orders of the consumer Foras.  In the instant case, as

discussed above, the petitioner has failed to disclose sufficient cause for delay caused

in filing of revision petition.  Therefore, we are not inclined to condone the delay on this

count alone and revision petition fails.

10.       Even on merits, we find that both the District Consumer Forum as well as the

State Commission have given concurrent finding of fact that the vehicle in question was

repossessed by the petitioner without serving notice of outstanding amount on the

respondent and it was also sold without giving any notice to the respondent.   The

counsel for the petitioner has failed to show any material irregularity or illegality in the

impugned order which may call for interference by this Commission

in revisional jurisdiction.  Therefore, also the revision petition fails.

11.       In view of the above discussion, application for condonation of delay in filing

revision petition is dismissed.  Accordingly, revision petition being time barred is also

dismissed.  No order as to costs.

                                                       ………………………….     (AJIT BHARIHOKE)

      ( PRESIDING MEMBER)                                                               

   …………………………                                                        (SURESH CHANDRA)                                                                            MEMBER

Am/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

 

REVISION PETITION NO.   2871 OF 2011 (From the order dated 14.6.2011 in Appeal No.2173/08 of the Rajasthan State

Consumer Disputes Redressal Commission, Jaipur)

 

1. Rajasthan Khadi and Gramudhyoug Board, Through Pyare Lal Bairwa AAO, Jawahar Lal Nehru Marg, Jaipur, Rajasthan

 2. Deputy Director (Khadi) Through Pyare Lal Bairwa AAO, District Industries Centre, Bharatpur, Rajasthan                                                        …Petitioners/OP 3 & 4

                                        Versus 1. Manvendra Dev S/o Keshav Dev, R/o Village Jaghina Teh. & Distt. Bharatpur, Rajasthan                                                 …Complainants/ Respondent-1

 2. The Bharatpur Central Co-operative Bank Ltd. Head/Main Office, through its Managing Director Bharatpur, Rajasthan

                                            …OP-1/ Respondent-2

 3. Branch Manager The Bhartpur Central Co-operative Bank Ltd. Kumher, District Bharatapur, Rajasthan

                                                            …OP-2/ Respondent-3

BEFORE

 HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

          For the Petitioner             :         Mr. S.K. Sinha, Advocate

          For the Respondent no.1: NEMO

          For the Res. Nos.2 & 3    :         Mr. Amit Agrawal, Advocate

 

PRONOUNCED ON 23 rd   January ,     2013

 O R D E R

 PER   JUSTICE K.S. CHAUDHARI, MEMBER

          This revision petition has been filed by the petitioner against the impugned order

dated 14.06.2011 passed by the Rajasthan State Consumer

Disputes Redressal Commission, Jaipur (in short, ‘the State Commission’) in Appeal

No. 2173 of 2008 – Manvendra Dev & Ors. Vs.

Rajasthan Khadi and Gramudhhyoug Board & Anr. by which while accepting appeal set

aside the order of learned District  Forum and allowed complaint against OP Nos. 3 & 4.

2.       Brief facts of the case are that

complainant/Respondent No.1  submitted application for loan with petitioner/OP NO. 4

under KVIC project for Bees Farming Industries and petitioner/OP-4 recommended

sanction of loan for Rs.2,63,200/- to the OP Nos. 1 & 2/Respondents No. 2 & 3 and also

approved that on payment of the first instalment of the loan, 30% of the total loan by

way of margin money will be deposited in term deposit.  Opposite party sanctioned loan

of Rs.2,00,000/- and it was incumbent upon the opposite party No. 2-Bank to inform OP

No. 4/petitioner and demand 30% of the margin money which they failed  and in such

circumstances, claiming deficiency on the part of opposite parties filed complaint with a

prayer/direction to Opposite party to deposit Rs.78,960/- along with interest.  Opposite

party resisted claim and filed their reply.  Learned District Forum after hearing both the

parties dismissed complaint against which this revision petition has been filed.

3.       Heard Learned Counsel for the petitioner and respondents no. 3 & 4.  None

appeared for the complainant/respondent no. 1.

4.       Learned Counsel for the petitioner submitted that as no information was given by

the bank authorities to the petitioner, margin money could not have been released and

learned State Commission has committed error in allowing complaint against them,

hence, petition be accepted and impugned order be set aside.  On the other hand,

learned Counsel for the respondent submitted that order passed by the learned State

Commission is in accordance with law, hence, petition be dismissed.

5.       Perusal of complaint reveals that complainant has mentioned in para 3 of the

complaint that by letter dated 15.3.2004 the bank informed OP. OP Nos. 3 & 4 also

admitted this fact in para 3 of its written statement but further alleged that claim for grant

was not submitted in prescribed form along with other documents, hence, amount was

not paid.  Perusal of record reveals that by letter dated 25.6.2003, Annexure R-2/1

petitioner/OP requested Respondent/OP Bank to sanction loan and intimate so that OP

may proceed for payment of margin money.  In this letter this fact has not been

mentioned that intimation was to be sent in any prescribed form.  Once, bank authorities

informed to the petitioner about disbursement of loan, it was obligatory on the part of

OP to process margin money and pay and if any intimation was required in

prescribed prorforma, OP/petitioner should have informed to the bank authorities which

has not been done.

6.       As Opposite party/Respondent Nos. 2 & 3 intimated to the petitioners in time

about disbursement of loan, it was obligatory on the part of the petitioner to disburse

margin money in the account of complainant and learned State Commission has not

committed any error in passing impugned order. As there is neither any illegality nor

irregularity in the impugned order which calls for interference, revision petition is liable

to be dismissed.

7.       Consequently, revision petition filed by the petitioner is dismissed with no order

as to costs.                                                                         ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER 

 

..……………Sd/-………………

( K.S. CHAUDHARI, J)

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO.   3691 OF 2010 (From the order dated 18.08.2010 in Appeal No.A/10/486 of the Maharashtra State

Consumer Disputes Redressal Commission, Mumbai)

 

Mr. Sayyed J.A. Wadood, Flat No.401, A-Wing, Poonam Enclave, Near Golden Nest, Opposite Himalaya Complex, Mira-Bhayandar Road, Mira Road (E), District – Thane – 400107

                                         …                    Petitioner/OP

                                        Versus The Manager, United India Insurance Company Ltd. 226, Canada Building, Dr. D.N. Road, Fort, Mumbai – 400001

                                          …   Respondent/Complainant

   

BEFORE

 

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

 

For the Petitioner      :      Mr. R.R. Shinde, Advocate

For the Respondent:        Mr. Ravi Bakshi, Advocate

 

PRONOUNCED ON 23 rd   January ,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER  

          This revision petition has been filed by the petitioner against the order dated

18.8.2010 passed by the Maharashtra State Consumer

Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in Appeal

No. Appeal No.A/10/486 – United India Insurance Co. Vs. Sayeed J.A. Wadood by

which while allowing appeal order of District Forum allowing complaint was set aside

and complaint was dismissed. 

2.       Brief facts of the case are that petitioner/complainant purchased Bolero GLX 200

vehicle in 2001 and got it registered with RTO and got Regd. No. MH-04-BD-

3763.  Petitioner got the vehicle insured as comprehensive from OP/respondent for

Rs.3,84,000/- for the period from 30.10.2003 to 29.10.2004.  When this vehicle was in

custody of his friend ShriPrakashchandra Sanghavi residing in Goregaon, Mumbai the

vehicle was stolen on 22.4.2004. His friend lodged complaint of theft on 27.4.2004 and

also informed to Tata Finance Ltd. and RTO.  OP was also informed about theft.  Claim

was lodged with the opposite party.  As no decision was taken after serving notice,

petitioner filed complaint for recovery of claim. Opposite party filed written statement

and denied the allegations made by the complainant and further submitted that claim

was repudiated on 21.3.2005 on account of complaint being time barred. It was further

submitted that vehicle was used by the complainant for hire and reward against the

terms and conditions of insurance policy which is evident from complainant’s income tax

return and prayed for dismissal of the complaint.  Learned District Forum after hearing

both the parties allowed complaint and directed respondent/OP to pay Rs.3,84,000/-

with 9% p.a. interest.  Respondent filed appeal before the

State Commission  and learned State Commission vide impugned order allowed appeal

and set aside order of District Forum and dismissed complaint against which order this

revision petition has been filed.

 

3.       Heard Learned Counsel for the parties at admission stage and perused record.

 

4.       Learned Counsel for the petitioner submitted that report of theft was promptly

lodged with the police station and respondent was also intimated immediately and

complaint was filed within limitation even then learned State Commission has committed

error in accepting appeal and dismissing complaint and in such circumstances petition

may be accepted and order of learned State Commission be set aside. On the other

hand, learned Counsel for the respondent submitted that order passed by learned State

Commission is in accordance with law which does not call for any interference, hence,

petition may be dismissed.

 

5.       It is admitted case of the complainant that vehicle was stolen on 22.4.2004 and

report of theft was lodged on 27.4.2004. In the complaint further it has been mentioned

that intimation of theft was given to Tata Finance Ltd. vide letter dated 29.4.2005 and to

RTO, Thane vide letter dated 6.5.2004.  Only this fact has been mentioned in paragraph

6 of the complaint that complainant also informed to the OP in respect of theft but no

date has been mentioned.  It appears that OP was not informed at least before 6.5.2004

meaning thereby there was no  intimation to the OP at least upto 15 days from the date

of commission of theft.  In such circumstances, OP/respondent has not committed any

error in repudiating claim of the Insurance Company vide letter dated 21.3.2005.

 

6.       Admittedly, theft was committed on 22.4.2004 and claim was repudiated by OP

on 21.3.2005 but complaint was filed on 19.7.2007 which is about after 2 year and 4

months. Complaint should have been filed within a period of 2 years from the theft or

from the repudiation of claim as complaint has been filed without any application under

Section 24-A of Consumer Protection Act, learned State Commission has not committed

any error in allowing appeal and dismissing complaint as complaint being time

barred.  Learned District Forum committed error in allowing time barred complaint.

 

7.       Learned Counsel for the petitioner could not place any citation in support of his

complaint to show that complaint was filed within limitation and complainant has not

committed breach of any condition of policy.  In such circumstances, order passed by

learned State Commission does not call for any interference and revision petition is

liable to be dismissed.

8.       Consequently, revision petition filed by the petitioner is dismissed at admission

stage with no order as to cost.                                                                         ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER 

 

..…………Sd/-…………………

( K.S. CHAUDHARI, J)

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO. 751 OF 2011(From the order dated 24.11.2010 in Appeal No.1514/05 of the Haryana State

Consumer Disputes Redressal Commission, Panchkula)

 

Mrs. Lajwanti W/o Shri Fateh Singh R/o H. No. 2779, Urban Estate, Jind (Haryana) Also at: R/o H. No.4577, Sector – 11 Extn., Urban Estate, Jind – 126102 Haryana.                                                                                  …        Petitioner/OP

                  Versus 1.Chief Administrator Haryana Urban Development Authority HUDA Complex, Sector 6, Panchkula (Haryana)

2.Administrator HUDA, Hissar, (Haryana)

3.Estate Officer HUDA, Jind District Jind (Haryana)

4.D.C.T.P.O. Jind Kothi No.1242, Urban Estate, Jind  (Haryana)

5.S.D.O. HUDA (Electricity Water, Roads, Sewear and Disposal Drainage Services) HUDA, Jind (Haryana)

6.Executive Engineer HUDA, HUDA Office Hissar, (Haryana)

                                …    Respondents/Complainants

 

BEFORE

 

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

 

          For the Petitioner                 :     Mr. Madhurendra Kumar, Advocate

          For the Res.Nos.1 to 3, 5&6:     Mr. R.S. Badhran, Advocate

         

PRONOUNCED ON     23 rd   January,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER  

          This revision petition has been filed by the petitioner against the impugned order

dated 24.11.2010 passed by the Haryana State Consumer Disputes Redressal

Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 1514 of 2005 –

HUDA Vs. Mrs. Lajwanti by which appeal of the respondent/opposite party was

partly  accepted and order of District Forum was modified. 

2.       Brief facts of the case are that complainant/petitioner was allotted Plot No.4577,

Sector II, Extension Urban Estate, Jind by respondent/OP vide allotment letter dated

11.10.2000.  Possession of flat was offered vide letter dated 20.3.2001 and possession

certificate was received by the complainant on 30.3.2001.  Complainant raised

construction upto DPC level for which certificate was issued on 28.6.2002.  As electric

wire was passing 3 ft. over the rear portion of the plot, the complainant could not

continue construction work. Electric line was removed on 5.9.2002, hence, alleging

deficiency in service filed complaint.  Opposite Party resisted the claim and submitted

that electric line was removed within 67 days from the date of submitting certificate and

thus there was no deficiency in service and prayed for dismissal of complaint.   Learned

District Forum after hearing both the parties allowed complaint and directed OP to pay a

sum of Rs.1,50,000/- and further to refund amount of interest recovered from the

complainant and further extended period of construction which was wasted in removing

electric line.  Respondent filed appeal and learned State Commission vide impugned

order partly accepted the appeal and modified order of compensation and reduced it to

Rs.10,000/- against which this revision petition has been filed.  

3.       Heard learned Counsel for the parties at admission stage and perused record. 

4.       Learned Counsel for the petitioner submitted that as construction was

delayed  due to non-removal of electric wire, learned District Forum rightly allowed

compensation of Rs.1,50,000/- and learned State Commission has committed error in

reducing it to Rs.10,000/-, hence, petition may be accepted and order of State

Commission be set aside.  On the other hand, learned Counsel for the respondent

submitted that order passed by the State Commission is in accordance with law as

electric wires were removed within a very small span, hence, petition may be dismissed.

 

5.       It is admitted fact that possession certificate was received by petitioner on

30.3.2001 and complainant raised construction upto DPC level without permission.

Certificate for construction was issued on 28.6.2002 and in such circumstances,

petitioner could have started construction only after that date.  It is also clear that

electric wire was removed by respondent within 67 days from the date of issuing DPC

level certificate.  In such circumstances, there was no occasion for the District Forum to

grant huge compensation of Rs.1,50,000/-.  Petitioner has not mentioned in her

complaint that how much amount she intended to spend on the construction activities

and within a period of two months how much cost escalated.  Learned State

Commission has rightly observed in its impugned order as under: 

“We find force in the contention raised on behalf of the

appellants-opposite parties. Admittedly, the complainant had

submitted the DPC certificate on 28.6.2002 and the electric wire

was removed by the opposite parties on 5.9.2002.  Thus, within a

period of about two months and seven days a huge increase of

Rs.2,50,000/- in the cost of construction material is not

believable.  The report dated 2.7.2003 obtained by the

complainant first the valuer in the cost of construction is not in

accordance with law because the valuer has not disclosed the

period for which the alleged escalation in the cost of construction

was assessed by him to the tune of Rs.2,50,000/-. Therefore, the

report of the valuer is of no consequence. It is a matter of

common knowledge that within a period of two months and

seven days, so much escalation in the construction material

cannot go high.  We have no data before us with respect to the

rising in the cost of construction material is not believable.  The

valuer has not disclosed the rates of bricks, cement, sand and

Bajri etc. Thereafter, awarding of compensation to the

complainant to the tune of Rs.1,50,000/- is not justified.

 

As a sequel to our aforesaid discussion, we feel that the opposite

parties was under an obligation to offer the possession of the plot

to the complainant after removing the electric wire from the back

portion of her plot so that she could raise construction on the plot

of her free will at any time after completing the construction upto

DPC level.  Due to the inaction on the part of HUDA in not

removing the electric wires/pole from the back portion of the plot,

it has definitely caused a hindrance for a period of two months in

completing the construction by two months. We therefore feel

that instead of awarding an amount of Rs.1,50,000/-, if the

complainant is at the most awarded compensation of Rs.10,000/-

for deficiency of service, it would meet to the ends of justice and

we order accordingly”.

 

 5.       We do not find any infirmity in the impugned order in modifying amount of

compensation to the petitioner and there is no justification for enhancement of

compensation and in such circumstances, revision petition is liable to be

dismissed.  Learned Counsel for the petitioner submitted that period for construction

may be extended but perusal of District Forum order reveals that extension of period

had already been extended for the aforesaid 67 days.

 6.       Consequently, revision petition filed by the petitioner is dismissed at admission

stage with no order as to cost.

 

                                                                         ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER 

 

..…………Sd/-…………………

( K.S. CHAUDHARI, J)

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO. 397 OF 2010(From the order dated 28.10.2009 in Appeal No.FA-09/644 of the State Consumer

Disputes Redressal Commission, Delhi)

 

Delhi SC/ST/OBC/Minorities/ Handicapped/Financial and Development Corpn. Ltd., Ambedkar Bhawan, Institutional Area, Sector 16, Rohini Delhi

                                                                                        …            Petitioner/OP

                                       Versus

 Kamal Kishore S/o Itwari Lal R/o D-476, Jahangir Puri, Delhi – 110033.

                                           …    Respondent/Complainant

BEFORE

 

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

 

          For the Petitioner                 :     Mr. Vivek Kumar Tandon along with

Mr. Manish C., Advocates

          For the Respondent             :     Mr. Madhurendra Kumar, Advocate

         

PRONOUNCED ON 24 th     January,     2013

 O R D E R

 

 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER  

          This revision petition has been filed by the petitioner against the impugned order

dated 28.10.2009 passed by the State Consumer Disputes Redressal Commission,

Delhi (in short, ‘the State Commission’) in Appeal No. FA-09/644 – Delhi

SC/ST/OBC/Minorities/Handicapped Financial and Development Corporation Ltd. Vs.

Kamal Kishore by which application for condonation of delay was rejected and

consequently, appeal was dismissed. 

2.       Brief facts of the case are that complainant/OP filed complaint before District

Forum and ex-parte order allowing complaint was passed by learned District Forum on

21.5.2007 against which petitioner filed appeal before learned State Commission along

with application for condonation of delay. Learned State Commission by impugned

order dismissed application for condonation of delay as there was delay of 750 days in

filing appeal and consequently, appeal was dismissed. 

3.       Heard learned Counsel for the parties and perused record.

4.       Learned Counsel for the petitioner submitted that learned State Commission has

committed error in rejecting application for condonation of delay and dismissing appeal

as delay was beyond control of the petitioner, hence, petition be accepted and order of

State Commission be set aside and matter be remanded to learned State Commission

for disposal of appeal on merits.  On the other hand, learned Counsel for the 

respondent submitted that order passed by State Commission is in accordance with

law, hence, petition be dismissed.

 5.       Petitioner filed application for condonation of delay before the State Commission

in which period of delay to be condoned has not been mentioned purposely.   The

explanation given for condoantion of delay in paragraph 2 of the application is as

follows:

“2.      That due to inadvertence and wrong noting of the date the

file was not assigned to the counsel within time therefore Ex-

parte order was passed.  That therefore upon coming to

know about the present order immediately file was sent for

approval of the competent authority for permission and

disbursement of the requisite expenses of the counsel and

the counsel kept file with his office but did not filed an appeal

despite the fact that the appellant corporation was pursuing

the case with their counsel and later on the said counsel

returned the said file stating the fact that he will not be in

position to contest the present case and then the file was

handed over to the present counsel who immediately

prepared the appeal and filed before this Hon’ble

Commission for consideration”.

 6.       In paragraph 3 it was further alleged that delay caused was purely due to

administrative functioning and delay is neither intentional nor deliberate but due to

above stated bonafide reason.  In this application nothing has been mentioned when file

was sent for approval of competent authority for filing appeal, when filed was returned

by the counsel and when another counsel was engaged to prepare appeal who filed it

immediately before the State Commission.  In written arguments submitted by leaned

Counsel for the petitioner in paragraph 20,it was submitted that -

“That the petitioner took back the file of the case and handed over to another counsel on 4.12.2008, but as the ill luck would have been prevailing over the petitioner, the other counsel also slept over the file for 6 months”.

  This fact has nowhere been mentioned in application for condonation of delay

filed before learned State Commission and fresh efforts have been made for

covering 6 months delay which cannot be believed at this stage.  Learned State

Commission has rightly dismissed application for condonation of inordinate delay

of 750 days and this order does not call for any interference.

 

7.       Learned Counsel for the petitioner has placed reliance on (1981) 2 SCC 788 –

Rafiq and Anr. Vs. Munshilal and Anr. in which High Court’s order dismissing appeal

was set aside by Hon’ble Supreme Court as High Court rejected the appeal on the

ground that appeal was prepared and drafted and affidavit was sworn on 29 th October,

1980 whereas appeal was filed on 12.11.1980.  Thus, it becomes clear that as there

was no satisfactorily explanation of 13 days, High Court rejected application for

condoantion of delay which was set aside by the Supreme Court. This citation does not

help to the petitioner as there is inordinate delay of 750 days and no satisfactory

explanation has been given by the petitioner.  He has also placed reliance on 2009 (6)

SCALE 677 – State of Karnataka Vs. Y. Moideen Kunhi (dead) by Lrs. and Ors. in which

inordinate delay of about 300 days against the review petition and nearly 6,500 days

against the original order was condoned by Hon’ble Apex Court because Government

made out a case of public interest and has further shown to have suffered due to acts of

fraud or bad faith on the part of its officers or agents in surrendering land and this delay

was condoned subject to payment of exemplary cost of Rs.10,00,000/-.  In the case in

hand, there is no allegation of petitioner against its officers.   Allegations are only

against the advocates but name of the advocate and any action taken against any

advocate has not been reflected in the application and in such circumstances, this

citation does not help to the petitioner.  He has also placed reliance on (1973) 3 SCC

800 – The Punjabi University, etc. Vs. Acharya Swami Ganesh and Anr. in which Apex

Court set aside the order of High Court as High Court did not condone delay of 2 days in

filing appeal.  This citation does not help to the petitioner as there is delay of 750 days. 

8.       Petitioner also did not appear before learned District Forum which shows that

petitioner was reluctant in contesting the matter and so appeal was also filed after 750

days.

9.       We do not find any jurisdictional error, material irregularity and infirmity in the

impugned order and revision petition is liable to be dismissed. 

10.     Consequently, revision petition filed by the petitioner is dismissed with no order

as to costs. 

                                                                         ..………………Sd/-…………

( V.B. GUPTA, J)

PRESIDING MEMBER 

 

..……………Sd/-………………

( K.S. CHAUDHARI, J)

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO.   3848 OF 2007 (From the order dated 14.08.2007 in Appeal No.2177/06 of the Karnataka State

Consumer Disputes Redressal Commission, Bangalore)

 

1. Life Insurance Corpn. Of India Divisional Manager, No. 37, Jeevan Prakash, Mysore-Bangalore Road, Bannimantap, Mysore                

 2. Branch Office, LIC of India M.C., Road, Bandi Gowda Layout Mandya Through:  Assistant Secretary Northern Zonal Office, LIC Jeevan Bharti, Connaught Circus, New Delhi                                                           …                Petitioners/OPs

                                        Versus 1. Smt. Kempamma W/o Late Hemagirigowda 

2. Hemagirigowda @ Thammaiah Both R/o Yadavanahally Village, Bekkalale Post Koppahobli, Maddur Taluk Mandya, Karnataka

        …             Respondents/Complainants

   

BEFORE

 

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

 

For the Petitioners    :      Mr. Ashok Kashyap, Advocate

For the Respondents:      Mr. Jojo Jose, Advocate

 

PRONOUNCED   ON     24 th     January,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER

          This revision petition has been filed by the petitioner against the order dated

14.8.2007 passed by the Karnataka State Consumer Disputes Redressal Commission,

Bangalore (in short, ‘the State Commission’) in Appeal No. 2177 of

2006  – Kempamma & Anr. Vs. LIC of India & Anr. by which, while allowing appeal,

reversed order of District Forum and allowed complaint and directed petitioner/OP to

pay Rs.1,00,000/- along with 6% p.a. interest.

2.       Brief facts of the case are that Complainant No. 1 husband and Complainant No.

2 father, Hemagirigowda obtained policy of Rs.1,00,000/- on 13.3.2001 from

petitioner/respondent which lapsed due to non-payment of premium.  On the application

of the assured, policy was revived on 19.9.2003 but unfortunately assured died on

7.5.2005 due to heart attack.  Complainants submitted claim for policy amount which

was repudiated by petitioner, hence, complainants filed complaint.  Petitioner/OP filed

written statement and admitted issuance and renewal of policy but submitted that policy

was issued under medical scheme and on the declaration made in the proposal form

and also before the medical examiner.  At the time of renewal the deceased submitted

his personal statement regarding health and medical report.  Medical examiner also

medically examined assured but assured falsely answered questions in the personal

statement regarding his health and there was no discloser of material facts, so claim

was repudiated.  Assured died due to heart attack which had direct nexus with disease

suffered by assured and prayed for dismissal of complaint.  Learned District Forum after

hearing both the parties dismissed complaint but on appeal learned State Commission

vide impugned order set aside order of District Forum and allowed complaint against

which this revision petition has been filed.

3.       Heard learned Counsel for the parties and perused record.

4.       Learned Counsel for the petitioner submitted that at the time of revival the

assured suppressed fact of undertaking treatment and also falsely answered the

questions in personal statement regarding his health and learned District Forum rightly

dismissed the complaint but learned State Commission has committed error in allowing

complaint, hence, petition be accepted and order of State Commission be set aside.  On

the other hand, learned Counsel for the respondent submitted that order passed by

learned State Commission is in accordance with law as there was neither

suppression of material facts nor nexus of death to treatment undertaken by assured,

hence, petition be dismissed.

5.       It is admitted case that assured policy lapsed which was revived on 19.9.2003

and at that time he submitted information regarding his health and treatment.   Learned

District Forum in its order dated 21.8.2006 observed that assured suppressed material

fact about health at the time of revival of policy.   Learned District Forum observed as

under:“15.    Coming to the facts of this case at the time of revival of the policy

i.e. on 19.9.2003 the life assured has given answers in his personal

statement regarding his health as below:

 

                    Q.No.2 a)     Have you suffered from any illness/

                                       Disease requiring treatment for a week

                                       or more?                                            : No                              b)      Did you ever have any operation,

                                       accident or injury?                              : No.                             c)       Did you ever undergo ECG, X-ray

                                       Screening, blood, Urine or stool

                                       Examination?                                     : NoQ.No. 4      Are you at present in sound health     : Good

 

16.     This health statement was given on 19.9.2003.  The evidence of

RW-2 and the documents Ex.D-6 and D-7 reveal that on 29.7.2003

the insured visited VinayakaHospital in Hanumant Anagara,

Bangalore with a complaint of breathlessness on exertion and

cough and sputum production since one month.  On examination on

the lungs, he found murmur sound, he is suspected bronchitis

(lower respiratory tract infection) and he prescribed medicines and

also X-ray as per Ex.D-6. As pere Ex.D-7 on 30.7.2003 the life

assured had undergone chest X-ray and the diagnosis was

right hilar and right basal pneumatics (? Koch’s).  According to the

evidence of RW-2 as per the X-ray there was infection in the right

lung at lower part in central portion and Koch’s means tuberculosis.

He was also advised to take the test of sputum continuously for

three days.  Of course, he has taken treatment as an

outpatient.  Though in the cross-examination, RW-2 has deposes

that tuberculosis is a curable disease depending upon the infection

and there was no heart problem to the life assured it is evident that

at the time of renewal of the policy the deceased assured was

aware that he had taken treatment for tuberculosis and under gone

X-ray in spite of it he answered the questions narrated above in the

negative though the treatment for tuberculosis and undergoing X-

ray were within the knowledge of the deceased assured. Though it

is contended that the deceased died due to heart attack and there

is no nexus between tuberculosis and heart attack that the National

Commission and our State Commission has held that there need

not be any nexus between the decease at the time of obtaining the

policy or revival to that of cause of death.  It is established law that

contract of insurance is of utmost good faith and the proposal

statement regarding health shall be basis of contract at the time of

revival and if it contains any untrue averments, the contract will be

null and void. So the opposite party has proved that the deceased

assured as suppressed undergoing treatment for tuberculosis for

more than a week and also subjecting to the X-ray and in spite of

the knowledge of tuberculosis, he concealed those facts at the time

of revival of the policy though those material facts were within his

knowledge.  Therefore we answer point no. 1 in the affirmative”.    

                                                                                                                  

6.       Learned District Forum rightly observed that at the time of revival of lapsed policy

the assured suppressed material facts about his health.  Learned State Commission

while allowing appeal observed as under:

“No doubt the insurance company has examined one Dr. C.J. Girish in support of its defence.  The said doctor in his evidence has deposed that the insured was subjected to medical tests conducted by it. In the test he has also appears to have diagnosed that the complainant was suffering from lower respiratory tract infection for which he prescribed medicine. In the cross

examination he has deposed that the patient was not anemic and there was no illness pertaining to the heart and the patient had taken treatment as an outpatient and that tuberculosis infection is curable if the infection is not severe.

 

From this it is seen that at no point of time the insured had taken any treatment as an in-patient in any of the hospital.  Further the death is due to the heart attack. The above said disease has no nexus with the cause of death.  If that is so, there is no reason for the insurance company to repudiate the claim that too in the absence of any evidence to that the complainant had the knowledge of any of diseases even though he was subjected to certain medical tests by Dr. C.J.Girish.

 

Before the revival of the policy the insured was also subjected to medical test by the panel of doctors of the insurance company.  If at all if the insured was suffering from any disease necessarily the doctor who conducted the medical examination would not have certified the insured was hale and healthy. Therefore, in our view the DF is not right in dismissing the complaint of the complainant”.

 

7.       Observances given by learned State Commission are apparently not correct

because assured gave wrong answers regarding his health at the time of revival of

policy which is apparent from the perusal of form and further treatment of disease which

was also proved by petitioner by evidence of treating doctors before the District

Forum.  In such circumstances, it cannot be said that assured had not suppressed

material facts and had not given wrong statement pertaining to his health.

8.       Learned Counsel for the opposite party submitted that burden of proof regarding

false representation and suppressing material fact lies on the Corporation.  In support of

his contention he placed reliance on (AIR) 1991 SC 392 – LIC of India Vs.

G.M. Channabasemma, IV CPJ 269 (NC) – Asha Garg & Oth Vs. United India

Insurance Co. Ltd. and II CPJ 9 (NC) – LIC of India

Vs. Badri Nageswaramma & Oth.  in which it was held that  burden to prove false

representations and fraudulent suppression of facts by the assured lies on Insurance

Company.  We agree with the principles laid down in aforesaid citations but perusal of

record reveals that OPs discharged its burden by proving false representation and

suppression of material facts by the assured by evidence of RW1 Dr. C.J. Girish and

treatment documents as well X-ray report. As the assured suppressed material facts

and made false statements in the revival form the petitioner was right in repudiating

claim and learned State Commission has committed error in allowing complaint.

9.       Learned Counsel for the petitioner placed reliance on IV (2009) CPJ 8 (SC)

– Satwant Kaur Sandhu Vs. New India Assurance Company Ltd. in which Hon’ble Apex

Court held that insured is under obligation to make true and full disclosure of information

within his knowledge. Where insured is on regular treatment and fully aware about his

state of health and statements made in the proposal form regarding as to state of health

are  palpably untrue to his knowledge, repudiation of claim is justified.   In the matter in

hand, petitioner has proved that at the time of revival, assured suppressed material

facts regarding his treatment and gave false answers to the questions and in such

circumstances, petitioner rightly repudiated the claim.

10.     Learned Counsel for the OP placed reliance on AIR (1962) SC 814

– Mithoolal Nayak Vs. LIC of India in which it was observed –

“The principle underlying the Explanation to S.19 of the Contract Act is that a false representation whether fraudulent or innocent, is irrelevant if it has not induced the party to whom it is made to act upon it by entering into a contract.  We do not think that that principle applies in the present case. The terms of the policy make it clear that the averments made as to the state of health of the insured in the proposal form and the personal statement were, the basis of the contract between the parties, and the circumstance that Mahajan Deolal had taken pains to falsify or conceal that he had been treated for a serious ailment by Dr. Lakshmanan only a few months before the policy was taken shows that the falsification or concealment had an important bearing in obtaining the other party’s consent.  A man who has so acted cannot afterwards turn round and say: “It could have made no difference if you had known the truth.”  In our opinion no question of waiver arises in the circumstances of this case, nor can the appellant take advantage of the Explanation to S.19 of the Indian Contract Act”.

 

This citation does not help to the respondent rather supports the case of petitioner as

deceased has suppressed material fact and made false representations in the revival

form.

11.     Learned Counsel for the respondent further argued that statement regarding his

health at the time of revival of lapsed policy is not to be seen. This argument is devoid of

force in the light of judgment rendered by this Commission in R.P. No. 85 of 2007

– Pritam Kaur Vs. LIC of India  in which it was held that “At the time of revival fresh

declaration is taken on the basis of which new contract is entered into” . Thus, it

becomes clear that at the time of revival of policy new contract comes into existence

and if assured suppresses material fact or gives false declaration regarding his health,

Insurance Company is entitled to repudiate claim.

12.     As assured has suppressed material facts regarding his treatment before revival

and gave wrong answers intentionally regarding his health and he died due to heart

attack which had direct nexus with disease suffered by him, petitioner has not

committed any error in repudiating claim.  Learned District Forum rightly dismissed

complaint of the complainant/OPs and State Commission has committed error in

allowing appeal and accepting complaint.

13.     Consequently, revision petition filed by the petitioner is allowed and impugned

order dated 14.8.2007 passed by learned State Commission is set aside and order of

District Forum dated 21.8.2006 dismissing complaint is affirmed. There shall be no order

as to cost.      

 

..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER 

 

..…………Sd/-…………………

( K.S. CHAUDHARI, J)

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO.   187 OF 2012 (From the order dated 03.10.2011 in Appeal No.1692/2011 of the Rajasthan State

Consumer Disputes Redressal Commission, Jaipur)

 

Ram, Pal Singh S/o Shri Dayalram R/o Katlabas Outside Deen Darwaja Kata, Didwana District Nagor                                                                          …            Petitioner/OP

                                        Versus General Manager Shri Transport Finance Co. Ltd. Regd Office: 123 Angappa Naikaen Street Madras

                                                         …    Respondent/Complainant

 

BEFORE

 

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

 

          For the Petitioner                 :     Mr. J.B. Mudgil Advocate

          For the Respondent             :     Mr. Lenin Singh Hijam, Advocate

         

PRONOUNCED ON 24 th   January ,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER  

          This revision petition has been filed by the petitioner against the impugned order

dated 3.10.2011 passed by the State Consumer Disputes Redressal Commission, Delhi

(in short, ‘the State Commission’) in Appeal No. 1692 of 2011 – Ram Pal Singh Vs.

General Manager Sri Ram Transport & Ors. by which appeal was dismissed and order

of District Forum dismissing complaint was upheld.

2.       Brief facts of the case are that complainant/petitioner obtained loan of Rs.

5,00,000/- from OP/respondent for purchasing truck for a sum of Rs. 6,11,000/-.  This

loan was to be repaid in 54 instalments. Due to illness of father of the complainant, loan

instalments could not be paid and muscle persons of OP snatched truck and OP sold it

for Rs.3,11,500/- and further raised demand of Rs.2,71,832/- from the complainant and

thus committed deficiency in selling truck at very low price and further demanding

money, hence, filed complaint for damages.  OP contested the complaint and submitted

that complainant does not fall within purview of consumer as per loan-cum-

hypothecation Agreement. Vehicle was repossessed and sold as per terms and

conditions of agreement and notice for recovery is still pending before Arbitrator and

prayed for dismissal of complaint.  Learned District Forum after hearing both the parties

dismissed complaint against which appeal filed by the complainant was dismissed by

impugned order, hence, this revision petition has been filed.

3.       Heard learned Counsel for the parties at admission stage and perused record.

4.       Learned Counsel for the petitioner submitted that impugned order passed by

learned State Commission is non-speaking order and petitioner fall within purview of

consumer as he obtained loan from the respondent, hence, petition be accepted and

impugned order be set aside and matter be remanded back to the learned State

Commission for passing speaking order.  On the other hand, learned Counsel for the

OP submitted that orders passed by learned State Commission and District Forum are

in accordance with settled law which  does not call for any interference, hence, petition

be dismissed. 

5.       It is admitted case of parties that complainant purchased truck on finance

provided by OP and parties entered into hypothecated agreement and this amount was

to be paid by the complainant in instalments. Complainant failed to pay instalments and

in such circumstances, vehicle was repossessed by the OP and after notice vehicle was

sold.

6.       Learned Counsel for the petitioner submitted that learned State Commission has

not passed speaking order, hence, matter may be remanded back.  It is true that

learned State Commission has not passed speaking order and learned State

Commission ought to have passed speaking order after dealing with arguments placed

by Counsel for the appellant but only on this count there is no justification to remand the

matter if there is no merit in the complaint at all.

7.       Learned District Forum after referring many citations of this Commission held that

complainant does not fall within purview of consumer and repossessing vehicle under

the terms and conditions of hire purchase agreement cannot be considered as any

negligence on the part of OP.  When complainant failed to pay instalments it was within

the domain of OP to repossess vehicle and dispose it as per agreement and law.

Similar complainant has been dismissed in IV (2012) CPJ 93 (NC) – Shriram Transport

Finance Co. Ltd. Vs.Chaman Lal after referring judgment of Hon’ble Supreme Court

reported in II (2012) CPJ 8 (SC) – Suryapal Singh Vs. Siddha Vinayak Motors & Anr.  I

do not find any infirmity in the order of District Forum which has been upheld by learned

State Commission and in such circumstances, I am not inclined to set aside the

impugned order and remand the matter back to the learned State Commission only on

the ground that order is not speaking order.

8.       Consequently, revision petition filed by the petitioner is dismissed at admission

stage with no order as to cost.  

..………………Sd/-……………

( K.S. CHAUDHARI, J)

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO. 3457 OF 2011

(From the order dated 03.08.2011 in First Appeal No. 1016/2011

of Haryana State Consumer Disputes Redressal Commission)

 

Shri Balraj Sharma S/o Shri Ramsaroop Sharma R/o H No. 220/4 Birbal Nagar Narwana District – Jind (Haryana)                 

...  Petitioner / Complainant

 

Versus

 Manager ICICI Lombard General Insurance Co. Ltd. Hisar

 … Respondents / OP

 

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

 

For the Petitioner(s)   Mr. J. B. MUDGIL, Advocate

 PRONOUNCED ON : 24 th   JAN. 2013

 O R D E R

 

PER JUSTICE K.S. CHAUDHARI, MEMBER 

        This revision petition has been filed by the petitioner against the impugned order

dated 03.08.2011 passed by the learned Haryana State Consumer Disputes Redressal

Commission (for short ‘the State Commission’) in FA No. 1016 / 2011 ‘Balraj Sharama

Vs. Manager, ICICI Lombard General Insurance Co. Ltd.’, by which appeal was

dismissed and order of District Forum dismissing the complaint was affirmed.  

2.     Brief facts of the case are that complainant / petitioner is registered owner of HR –

56 – T – 0066 which was insured with opposite party / respondent from 30.03.2008 to

29.03.2009.  Complainant sent aforesaid vehicle along with driver Rajpal from Kaithal to

Kandla on 12.05.2008 but vehicle did not turn back. On 24.07.2008, complainant

received information from Economic Cell Office of S.P. Kaithal regarding dispute in

repayment of the instalments between driver Rajpal and purchaser

Satyawan.  Complainant immediately approached S.H.O. P.S. Sadar Kaithal on

25.07.2008 to register a case of theft and intimation was also given to OP on

28.07.2008 through registered Post.  As case was not registered by Police, complainant

approached to Punjab & Haryana High Court and as per direction of Hon’ble High

Court, F.I.R. was registered on 5.02.2009.  But vehicle could not be traced out by the

Police.  Opposite Party insurance company appointed a surveyor.  Complainant

submitted claim which was repudiated by the Opposite party on the ground of delay in

lodging FIR, hence alleging deficiency in service on the part of the Opposite Party

Insurance Company, filed a complaint before the District Forum.  Opposite party

contested the complaint and submitted that no intimation of theft was received by

opposite party on 28.07.2008 but complainant intimated to opposite party on 7.01.2009

and thus, complainant violated terms and conditions of the policy.  Learned District

Forum after hearing both the parties, dismissed the complaint and appeal filed by the

complainant was also dismissed by the State Commission vide impugned order. 

3.     Heard learned counsel for the petitioner / complainant at admission stage and

perused record. 

4.     Counsel for the petitioner / complainant submitted that intimation of theft was given

to opposite party on 28.07.2008 just after knowledge of theft even then learned State

Commission has committed error in dismissing the appeal and District Forum committed

error in dismissing the complaint hence petition be accepted and the order passed by

the State Commission be set aside. 

5.     It is admitted case that vehicle was stolen on 12.05.2008.  As per complainant FIR

was lodged on 25.07.2008.  But it appears that on that date no FIR was lodged but as

per directions of Hon’ble Punjab and Haryana High Court, FIR was registered on

05.02.2009. Complainant alleged in the complaint that intimation was given to Opposite

Party on 28.07.2008 through registered post to which Opposite Party denied in written

statement and submitted that intimation was received on 07.01.2009.  District Forum

disbelieved that intimation to OP was given on 28.07.2008 and observed that there was

delay of 267 days in lodging the FIR and delay of 230 days in giving intimation of theft to

opposite party and on the ground of delay in lodging the FIR and intimation to Opposite

Party, dismissed the complaint.  Complainant has not proved that intimation was

received by OP on 28.07.2008.  The State Commission also upheld the order of District

Forum as there was inordinate delay in giving intimation to opposite party.   Even if it is

presumed that by letter dated 28.07.2008 intimation of theft was given by complainant

to OP, there was clear delay of two and half months and in such circumstances learned

District Forum has not committed any error in dismissing the complaint and State

Commission has also not committed any error in dismissing the appeal in the light of

judgement passed by Apex Court in “Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United

India Insurance Co. Ltd. and Anr.” [2011 CTJ 11 (Supreme Court) (CP)].  I do not find

any illegality or material irregularity or jurisdictional error in the impugned order and

revision petition is liable to be dismissed at admission stage.  

6.     Consequently, the revision petition filed by the petitioner is dismissed at admission

stage with no order as to costs...……………………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBERRS/

 

 

 

 

 

 

 

 

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

           FIRST APPEAL NO. 695 OF 2006

(Against the order dated 26.09.2006 in Complaint Case No. 22/1997 of the Bihar State

Consumer Disputes Redressal Commission, Patna)

 

Birendra Kumar S/o Shri Baban Prasad R/o Mohalla Hanuman Nagar Punaichak, P.S. Shastrinagar District Patna Bihar-800023

                                                     …      Appellant

Versus

 Dr. Usha Kiran Jha Consultant, Histopathologist-cum-Cytologist (U.K. Histopath) Daughter of Dr. Bodh Krishna Jha R/o Chandrakanta Apartment Pandue Kothi Front of Bata India Gali Boring Road Patna-1

                                                               …      Respondent

  

BEFORE:

           HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

 

 For Appellants                   :   Mr. Sumit Kumar, Advocate with

                                                Mr. Anil Kumar, Advocate                                  

For Respondent                :   Mr. Mahesh K. Chaudhary, Advocate

 

Pronounced on     28 th   January, 2013

 

ORDER

PER VINEETA RAI, MEMBER 

1.      This first appeal has been filed by Birendra Kumar, original Complainant before

the Bihar State Consumer Disputes Redressal Commission, Patna (hereinafter referred

to as the State Commission) and Petitioner herein being aggrieved by the order of that

State Commission, which had disallowed his complaint of medical negligence against

Dr. Usha Kiran Jha, Opposite Party before the State Commission and Respondent

herein.

FACTS :-

2.      In his complaint before the State Commission, Appellant had stated that he had

taken his minor son Ashish Priyadarshi (hereinafter referred to as the Patient) to a

Specialist-Pediatrician Dr. Mohan Choudhary with a complaint of small gland on the left

side of his neck and who after examination advised some tests, including an x-ray of the

chest and biopsy on the lymph gland.  The names of two doctors were recommended;

(i) Dr. K.K. Kanth and (ii) Dr. Usha Kiran Jha.  On 18.11.1995 Appellant again went to

Dr. Mohan Choudhary, who advised FNAC of the left lymph gland.  Appellant,

accordingly, contacted Dr. Usha Kiran Jha, who took specimens for the FNAC of the

neck gland and after a laboratory examination gave a report that the Patient appeared

to be suffering from Tuberculosis.  On the basis of this diagnosis, the consulting

Pediatrician prescribed medicines for Tuberculosis and when the condition of his son

did not improve he took him to the All India Institute of Medical Sciences, New Delhi,

where after seeing the FNAC slide the doctors there opined that this was indicative of

Hodgkin’s disease i.e. Cancer.  The Appellant thereafter took his son to Tata Memorial

Hospital for Chemotherapy and he is presently recovering from Hodgkin’s

disease.  However, because of the wrong report given by the Respondent, on the basis

of which the Pediatrician also prescribed medicines which were not required, the Patient

apart from suffering adverse side effects also had to undergo delay in the correct

treatment for the Cancer.  Appellant thereafter filed a complaint of medical negligence

and deficiency in service against the Respondent and requested that she be directed to

pay Rs.5,41,413.34 as compensation.

3.      Respondent on being served filed a written rejoinder denying any medical

negligence on her part.  It was stated that the Appellant had approached her with a

written recommendation of the Pediatrician requiring her to only conduct an FNAC

procedure and not Biopsy.  The FNAC was accordingly scientifically conducted in a

well-equipped laboratory and on the basis of this the Appellant gave her opinion.  There

was no negligence in this matter and even if there was a misdiagnosis after due care

was taken to conduct the FNAC, it did not amount to medical negligence as per settled

law.  Respondent further contended that it was the Appellant who delayed getting a

Biopsy done on his son because admittedly he did not get it conducted on 17.11.1995

and 06.12.1995 despite advice from the Pediatrician and instead went to All India

Institute of Medical Sciences.  Even there he did not get the necessary tests done and

instead took the Patient to Tata Memorial Hospital delaying the Biopsy and proper

treatment by several weeks.  Respondent further contended that she had not

prescribed/administered any medicine for Tuberculosis, which was done by the

Pediatrician, since she was only the Histopathologist and not the treating doctor i.e. the

clinician in the present case.

4.      In the first round of litigation, the State Commission after hearing both parties vide

its order dated 08.12.1999 dismissed the complaint.  Aggrieved by this, the Appellant

filed an appeal before the National Commission, which on 02.06.2006 remanded the

case back to the State Commission with a direction that the Opposite Party

(Respondent herein) be permitted to file evidence by way of affidavits and if so desired

to cross-examine each of the deponents as also refer the matter for obtaining expert

opinion on this subject.  The State Commission after complying with the above

directions but not allowing impleadment of consulting Pediatrician as an Opposite Party

again dismissed the complaint by observing as follows :“12.   The O.P. is a cytologist and she is not a clinician and on the basis of the slide she has expressed suspicion of tuberculosis for which the reason is mentioned.  She has explained that she has given only one prick to collect smear and that might have been given at a place where lymphoma was not present at that point of time.  The clinician has not discussed the case with the O.P.  He did not advise her for rechecking of the slide.  On the other hand he has advised for biopsy test to eliminate lymphoma which was never done by her and the complainant himself did not opt for this test.  The physician has insisted for proper biopsy test to exclude lymphoma but the complainant was himself negligent in not opting for this test at Patna and he himself wasted time for more than 15 days and thereafter he went to Delhi.  As stated above at Delhi also he did not cooperate in full test as advised at AIIMS but returned back to Patna and after six months he went to Bombay.  Had the complainant got the biopsy test done of his son as per advice by Dr. M. Choudhary in between 17-11-95 to 6-12-95 the Hodgkin’s disease could have possibly been detected through biopsy test and he would have even advised for the line of treatment by the physician who was treating him at Patna.  It was the fault on the part of the complainant that he allowed waste of time in the treatment of his son by not adopting the advise of the treating physician.  The O.P. in support of her case that her report was correctly prepared on the basis of guidelines under the medical science as detailed in journal of clinical pathology of March, 98 which mentions that FNAC test in conjunction with immunocyto chemistry could give reliable result but such facility is not available in Patna.  It is mentioned in the journal that excision biopsy and histopathological diagnosis remain the gold standard for the diagnosis of malignant lymphoma i.e. why the doctors at Patna and

at AIIMS have advised for biopsy test which the complainant willfully avoided.  Therefore, the negligence was on the part of the complainant and not on the part of the O.P. that she gave a report showing symptom of tuberculosis on the slide which she prepared while doing test of FNAC.  There is no expert opinion on record before us to support the case of the complainant that on the slide prepared for FNAC test the finding given by the O.P. suffers from defect and it was done under the method not acceptable to the medical science or it lack technical know how.  There is nothing on record to support the contention of the complainant that slide prepared by O.P. suffers from any defect or her suggestive finding suffered from deficiency as she adopted wrong line in examining the slide against the norms of the medical science.  The slide prepared by the O.P. was handed over to the complainant when he asked for.  The allegation of the complainant that doctor at AIIMS on examination of this slide came to the conlusion that patient was suffering from Hodgkin’s disease is not supported from the papers of the AIIMS as referred to above. ..”

(Emphasis provided) 

5.      The State Commission also cited a number of judgments, including the case

of Hacher v. Blare Lancet (1954-2-880), in which it was opined that a doctor cannot be

held to be negligent simply because as a matter of opinion he made an error of

judgment, as also Jacob Mathew v. State of Punjab [(2005) 6 SCC 1], wherein the

Hon’ble Supreme Court has laid down the principles defining medical negligence by

applying the well-known Bolam test.  Hence, the present first appeal. 

6.      Learned counsel for the Appellant was present.  Neither Respondent nor her

counsel was present.  Since service on the Respondent is complete, it was decided to

proceed with the case ex-parte. 

7.      Learned counsel for the Appellant in his oral submissions while reiterating the

facts stated by him in his complaint before the State Commission contended that the

State Commission erred in not appreciating the fact that the Respondent herself had

admitted that the FNAC procedure without the supporting Immunocyto Chemistry

Technology does not give the best results and she did not use the said technology

because it was not available in Patna. Under the circumstances, she should not have

given a categorical opinion that the Patient was suffering from Tuberculosis.  Had she

raised a doubt regarding the diagnosis, then the consulting Pediatrician would have

definitely advised for a Biopsy.  Unfortunately, because of this lapse the consulting

Pediatrician also did not prescribe a Biopsy till 06.12.1995, by which time the Patient’s

condition had deteriorated and he had to be rushed to the All India Institute of Medical

Sciences.  Appellant further stated that Respondent’s contention that he had himself

delayed the Biopsy on his son is factually not correct.  The State Commission also erred

in concluding that the Appellant had not been able to provide any expert medical

opinion to support his contention regarding the faulty FNAC because Respondent had

filed a supplementary affidavit along with the report of the Department of Pathology of

the Mahavir Cancer Sansthan in Patna, which clearly stated that the FNAC report of the

Respondent was indicative of Cancer and not Tuberculosis.  The first appeal, therefore,

deserves to be allowed.

8.      We have heard the submissions made by learned counsel for the Appellant,

including his written synopsis filed in Court today as also the entire evidence on

record.  The fact that the FNAC was conducted on the minor son of the Appellant by

Respondent on the specific written advice of the consulting Pediatrician, who had

examined the Patient, is not in dispute.  It is also an admitted fact that Respondent, who

is a consultant Histopathologist, had opined in writing that “this appeared to be a case of

Tuberculosis Lymphadenitis despite on ATT”.  This report was accepted by the

consulting Pediatrician and he did not raise any doubts regarding this diagnosis and,

therefore, Biopsy was not immediately recommended until 06.12.1995 when the

Patient’s condition deteriorated.  The State Commission noting these facts had

concluded that the Respondent had only given an opinion based on a scientifically

conducted FNAC that it was Tuberculosis and it was for the Pediatrician to have

reached a conclusive finding either after discussing this case with her or after having

recommended a Biopsy.  We find force in the finding of the State Commission since

admittedly the Respondent was not a clinician and there is no evidence that a

reasonable degree of skill and care was not taken by her in conducting the

FNAC.  Further, we agree with the State Commission that at the most Respondent

could be held responsible for misdiagnosis, which, as per settled law quoted in para-13

of the State Commission’s order, clearly does not amount to medical

negligence.  Further, the Appellant has not been able to pin point how the Respondent

erred in conducting the FNAC test.  The expert opinion filed by him along with his

affidavit also does not indicate any specific deficiency.  If at all there was any medical

negligence in not applying reasonable care and precaution, it could have been

attributed to the Pediatrician, who, however, has not been impleaded as a party by the

Appellant in this case.

9.      Keeping in view these facts, we see no reason to differ with the order of the State

Commission which had dismissed the Appellant’s complaint of medical negligence and

deficiency in service against the Respondent.  We, therefore, uphold the order of the

State Commission in toto and dismiss the first appeal.  No costs.     

 Sd/-

(ASHOK BHAN, J.)

PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER Mukesh

 

 

 

 

 

 

 

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO.   35 OF 2012 (From the order dated 18.04.2011 in Appeal No.1949/05 of the Haryana State

Consumer Disputes Redressal Commission, Panchkula)

 

Haryana Urban Development Authority Through its Estate Officer, Sonepat Haryana.                                                                      …            Petitioner/OP

                                        Versus Jai Pal Singh S/o Sh. Ganga R/o House No.29, Sector 14, Sonepat, Tehsil and Distt. Sonipat, Through its Power of Attorney Sh. Pawan Kumar S/o Sh. Rattan Lal, R/o House No.1134, Sector-14, Sonepat, Haryana.

                               …    Respondent/Complainant

 

BEFORE

 

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

 

          For the Petitioner                 :     Mr. R.S. Badhran, Advocate

          For the Respondent             :     NEMO

         

PRONOUNCED   ON     29 th   January,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

          This revision petition has been filed by the petitioner against the impugned order

dated 18.04.2011 passed by the State Consumer Disputes Redressal Commission,

Haryana (in short, ‘the State Commission’) in Appeal No. 1949 of 2005 – HUDA vs. Jai

Pal Singh by which while dismissing appeal order of District Forum was affirmed.

2.       Brief facts of the case are that complainant/respondent was allotted Plot No.323-

P in Sector 13 Part, Sonepat vide letter dated 19.9.2001, but petitioner/OP failed to

deliver actual physical possession of the plot to the complainant after providing all basic

amenities, hence, complainant filed complaint alleging deficiency on the part of OP and

prayed for delivery of possession of alternative plot. OP contested complaint and

learned District Forum while allowing complaint granted following reliefs:“…..the respondents are directed to allot an alternative plot to the

complainant bearing No.2145P, in Sector-7, Sonepat in place of plot

No.323P, situated in Sector-13 Part, Sonepat.  However, it is made clear

that the payment of excess area, if any, will be made by the complainant

to the respondents.

         

As far as interest-compensation is concerned, the respondents are

directed to pay interest-compensation to the complainant at the rate of

12% per annum on the amount lying deposited with the respondents from

the date of allotment of the plot till the actual physical possession of

alternative plot No.2145P, Sector-7,Sonepat, is delivered to the

complainant.  The respondents are also directed to deliver the actual

physical possession of the alternative plot No.2145P, Sector-7,Sonepat to

the complainant and to refund or adjust the amount of interest already

deposited by the complainants with the respondents and not to charge any

interest or penalty or any other amount from the complainant at the time of

handing over the actual physical possession of alternative plot to the

complainant.  The respondents are further directed to pay compensation

to the tune of Rs.5,000/- for causing mental agony and harassment and

further to pay Rs.2000/- under litigation expenses to the complainant.

          With these observations, findings and directions, the present

complaint stands accepted and the respondents are directed to make the

compliance of this order within 30 days from the date of this order”.     

 

3.       Petitioner filed appeal before the State Commission and the State Commission

vide impugned order dismissed appeal on the count of delay of 255 days as well as on

merits.

4.       Heard learned Counsel for the petitioner and perused record.

5.       This petition has been filed after inordinate delay of 140 days.  Petitioner has not

filed any application for condonation of delay with revision petition filed on 4.1.2012.  On

19.9.2012, learned counsel for the petitioner sought adjournment to file application

for condonation of delay. Even after lapse of 4 months, application for condonation of

delay has not been filed.  As revision petition has been filed with inordinate delay of 140

days and no application for condonation of delay has been filed, petition being barred by

time liable to be dismissed at admission stage.

6.       Learned State Commission also dismissed appeal on the count of inordinate

delay of 255 days as well as on merits.  It appears that petitioner is in the habit of filing

appeal or revision petition after inordinate delay and in such circumstances, in the

absence of any application for condonation of delay, revision petition is liable to be

dismissed.

7.       Petitioner has challenged in this revision petition only rate of interest awarded to

the complainant and period for which interest has been allowed and only to this extent

notice has been issued by this Commission to the respondent. Apparently, rate of

interest and period for which interest awarded by the District forum and affirmed by the

learned State Commission does not call for any interference.

8.       Consequently, the revision petition filed by the petitioner is dismissed at

admission stage with no order as to cost. 

..……………Sd/-………………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBERK

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

          FIRST APPEAL NO. 175 OF 2006

(Against the order dated 28.02.2006 in S.C. Case No. 61/O/2001 of the W.B. State

Consumer Disputes Redressal Commission, Kolkata)

 

Dr. Sunil Thakur Avenue Nursing Home 3A, Madan Street Kolkata-700072 Residing at 34, Bagmari Road Plot No. D/4, Kolkata-700054                           …      Appellant

 

Versus

1. Gorachand Goswami S/o Late Manick Lal Goswami Residing at Dakshini Housing Estate Phase-II, House No. C-1/19 P.S. Metiabruz, Kolkata-700018

 2.  M/s Avenue Nursing Home 3A, Madan Street Kolkata-700072 Jointly owned by

(i)  Fatima Khatoon

(ii) Hasma Khatoon

(iii)Mahasur Rahaman         

 3.  Lions District 322 B Blood Bank 27/8A, Waterloo Street Kolkata-700069

                                                  …      Respondents

 

BEFORE:

          HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

 

For Appellant                     :   Mr. Suchit Mohanty, Advocate

For Respondents              :   Ms. Meenakshi Midha, Advocate for R-1

                                                NEMO for R-2

                                                R-3 already ex-parte

 

Pronounced on 29 th   January, 2013

 

ORDER

PER VINEETA RAI, MEMBER 

1.      This first appeal has been filed by Dr. Sunil Thakur, Appellant herein and Opposite

Party before the West Bengal State Consumer Disputes Redressal Commission,

Kolkata (hereinafter referred to as the State Commission) which had allowed the

complaint of medical negligence filed against him by Gorachand Goswami, Respondent

No.1 and others herein and Complainant before the State Commission.

FACTS :

2.      Manick Lal Goswami (hereinafter referred to as the Patient) fell down from his

bicycle while returning home from his office on 14.11.2000 and sustained injuries, which

included a fracture in the neck of the femur.  Respondent No.1, who was Patient’s son,

contacted Appellant-Dr. Sunil Thakur, who was a Consultant Orthopedic Surgeon

attached to M/s Avenue Nursing Home on telephone the same night and who advised

him to bring the Patient for medical examination the next day i.e. on 15.11.2000, where

after an x-ray was taken confirming the fracture, patient was admitted in the Avenue

Nursing Home and operated upon by the Appellant on 17.11.2000.  Prior to the surgery,

the Appellant advised that one bottle of blood would be required, which would be

provided by the Avenue Nursing Home.  Blood was accordingly supplied and transfused

and the operation completed by 5.00 p.m.  However, blood transfusion continued even

after the surgery.  Soon after the blood transfusion, the Patient started frothing from the

mouth and complained of difficulty in breathing and shivering.  The next day, he could

not urinate and his eyes were found to be deep yellow in colour.   Subsequently, a

Nephrologist after examining the Patient advised that since he might need Dialysis and

this facility was not available in the Avenue Nursing Home, the Patient be shifted to

Calcutta Medical Research Institute (CMRI), which was done.  On request of CMRI to

the Blood Bank attached to it, one bottle of blood of A+ group (being the blood group of

the Patient) was supplied for the Patient’s Dialysis.  However, the condition of the

Patient continued to deteriorate and despite being put on a ventilator he passed away

on 01.12.2000.  As per the death certificate issued by CMRI, one of causes of death

was attributed to the “history of mismatched blood transfusion”.  It was contended that

while the blood group of the Patient was A+, the blood which was transfused to him at

the Avenue Nursing Home on 17.11.2000 was of B+ group as per the report of the

Blood Bank which supplied the blood based on an enclosed blood specimen sent with

the requisition slip.  It was also stated that the Patient’s condition actually deteriorated

following the transfusion of B+ blood while the Patient was under the treatment and care

of the Appellant, which clearly reveals gross medical negligence as also deficiency in

the treatment of the Patient on the part of the Appellant as also the Nursing

Home.  Being aggrieved by the loss of his father, who was the sole earning member of

the family, Respondent No.1 filed a complaint before the State Commission on grounds

of medical negligence and deficiency in service and requested that the Appellant and

Avenue Nursing Home be directed to jointly and severally pay Rs.6 Lakhs as

compensation.

3.      Appellant on being served filed a written rejoinder disputing the allegations made

in the complaint.  It was stated that as an Orthopedic Surgeon he operated successfully

on the Patient and no complaint regarding the surgery was made by Respondent

No.1.  So far as the arrangement for transfusion of blood was concerned, it was

submitted that this was arranged by the Patient’s relatives directly from the Lions District

322B Blood Bank at Waterloo Street, Kolkata and it was the duty of the Blood Bank to

correctly identify the blood group of the Patient and thereafter supply the blood after

matching it with the Patient’s blood group.  Further, as per the usual practice, it is for the

doctors and para-medical staff present in the operation theater of the Nursing Home to

carefully verify the name and blood group of the Patient before transfusion and for this

the responsibility cannot be fixed on the Orthopedic Surgeon.  It was further stated that

the Patient subsequently developed other complications like urination problems etc.,

which were not due to any medical negligence or deficiency in service in operating the

Patient and, therefore, the allegations of medical negligence and deficiency in service

are without basis. 

4.      The State Commission after hearing the parties allowed the complaint and held

the Appellant guilty of deficiency in service and medical negligence.  The operative part

of the State Commission’s observations is reproduced:“27.   …  we are inclined to say O.P. No.-2*  is evidently responsible for deficiency in service in terms of Sec.2(g) of the C.P. Act, 1986 on the following counts:- (i)     O.P. No.-2 failed to ascertain the blood Group of the deceased before sending the sample to the Blood Bank despite the fact that there was a reliable document with the complainant’s relatives in respect of Blood Group of the deceased though the Complainant had drawn attention of O.P. No.-2 to the said document.(ii)      O.P. No.-2 failed to mention the blood group of the deceased while sending sample to the blood Bank with a requisition which is otherwise mandatory.(iii)     O.P. No.-2 committed gross negligence by accepting and transfusing a blood group other than A+ve which was the deceased’s confirmed blood group.

*(i.e. the Appellant before the National Commission) 

(iv)    O.P. No.-2 failed to follow instructions contained in the Issue Document of Blood Bank where caution is printed on the Poly Bag containing Blood that in case of any reaction, the Surgeon/Physician must send sample of patient’s blood, a small sample of the blood transfused, patient’s symptoms evident on transfusion.” 

5.      The State Commission, therefore, directed the Appellant to pay a compensation of

Rs.5,28,000/- and Rs.10,000/- as costs to Respondent No.1.  The Avenue Nursing

Home (Opposite Party No.1 before the State Commission) was also directed to pay

Rs.10,000/- as compensation for their act of negligence and deficiency in service for

failing to carry the correct blood sample of the Patient to the Blood Bank.   The State

Commission, however, concluded that no case of negligence against the Blood Bank

was established.  Appellant as well as the Avenue Nursing Home were directed to pay

the above amount within 30 days from the date of communication of the order, failing

which it was to carry interest @ 12% per annum till the amounts were paid. 

6.      Aggrieved by this order, only the Appellant (i.e. Opposite Party No.2 before the

State Commission) filed this first appeal.

7.      Learned counsel for both parties made oral submissions.

8.      Learned counsel for the Appellant reiterated that the State Commission gave an

erroneous finding of medical negligence against Appellant since his responsibility was

only that of an Orthopedic Surgeon and admittedly the surgery was successfully

conducted by him without any complications. So far as provision of blood is concerned,

the responsibility is that of the concerned Nursing Home as also the Blood Bank to

cross check the blood group with the blood required and clearly state these

requirements in the requisition slip sent to the Blood Bank.  In case of any deficiency in

doing so, including not giving the full details, it is the Nursing Home (i.e. Opposite Party

No.1 before the State Commission) and the Blood Bank, which are solely responsible

and not the operating surgeon i.e. the Appellant in the instant case.  It was further

stated that the CMRI to whom the Patient was referred issued a death certificate without

careful consideration of the facts and, therefore, gave multiple reasons for the cause of

death but nowhere did it say that it was because of the faulty surgery.  Further,

Respondent No. 1 did not produce any expert medical evidence or person to prove his

case.  The Appellant was only a consulting doctor who had been called to the Avenue

Nursing Home to conduct the surgery and was not a regular member of its

staff.  Therefore, in respect of any negligence committed by the Nursing Home and its

staff in not verifying the blood group before sending it to the Blood Bank, the Appellant

cannot be held responsible. 

 

 

9.      Learned counsel for Respondent No.1 on the other hand stated that the Appellant

cannot take the plea that the blood was arranged for the Patient by his relatives and it

was the responsibility of the relatives, the concerned hospital and the blood bank to

ensure that a correct requisition slip was sent because there is evidence on record that

the requisition slip dated 16.11.2000 to the blood bank was signed by Dr. Sunil Thakur

(i.e. the Appellant) stating that one unit of blood for the Patient was required and a

specimen blood sample attached.  The requisition slip did not mention the blood group

of the Patient.  The blood sample was cross-checked in the blood bank and found to be

of B+ group and accordingly blood of B+ group was sent for transfusion for the

Patient.  It is clear from this that the Appellant had signed the requisition slip without

verifying whether the correct blood specimen had been sent and whether any blood

group was mentioned.   In view of these facts and the death certificate, which confirmed

that one of the causes of death was “mismatched blood transfusion”, the same was

rightly attributed by the State Commission to the Appellant’s medical negligence.

10.    We have considered the submissions made by learned Counsel for both parties

and have carefully gone through the evidence on record.  The fact that the Patient was

admitted in the Avenue Nursing Home for a surgery by the Appellant following fracture

of the femur neck is not in dispute.  It is further a fact that a requisition slip was sent to

the Blood Bank for blood transfusion required during and after the surgery and that the

blood specimen attached to it was not of the Patient but of some other person and,

therefore, the blood sent by the Blood Bank did not match with the Patient’s blood group

leading to serious complications, which contributed to his death.  Appellant’s contention

that he was not responsible for arranging the blood is not acceptable in view of the fact

that he had admittedly signed the requisition slip sent to the Blood Bank enclosing with

it a wrong specimen of blood.  Because of this serious lapse, the Patient developed

other complications following the blood transfusion relating to his liver and kidney

functions because as per medical literature there is a nexus between transfusion of

mismatched blood and renal urinary and liver problems*. [*Source :(i)      Medical Dictionary – FARLEX(ii)      Complications of Blood Transfusion (Maxwell & Wilson Oxford Journal)]

 

11.    Counsel for Appellant’s contention that Respondent had been unable to produce

any medical evidence in support of their case is also not tenable because in the instant

case the principle of ipsa res loquitur is clearly applicable.12.    Further, Counsel for Respondent No.1 has brought to our notice judgments of the

National Commission in Dr. Kam Inder Nath Sharma & Ors. V. Satish Kumar & Ors. [II (2005) CPJ 75 (NC)] and Dr. K. Vidhyullatha v. R. Bhagawathy [I (2006) CPJ 136 (NC)] as also of the Hon’ble Supreme Court inPost Graduate Institute of Medical Education & Research v. Jaspal Singh & Ors. [II (2009) CPJ 92 (SC)]  in support of

the contention, wherein it has been concluded that wrong blood transfusion is an error,

which no doctor/hospital exercising ordinary skill would have made, and such an error is

a sure instance of medical negligence.  Keeping in view the facts in this case, as

discussed above, and respectfully following the judgment of the Hon’ble Supreme Court

as also of this Commission, which are relevant in the instant case, we agree with the

finding of the State Commission that the Appellant was guilty of medical negligence and

uphold the same.     

12.    This first appeal having no merit is dismissed.  Appellant is directed to comply with

the order passed by the State Commission and pay the awarded amount of

Rs.5,38,000/- (i.e. Rs.5,28,000/- as compensation and Rs.10,000/- as cost) to

Respondent No.1.  No costs.

Sd/-

(ASHOK BHAN, J.)

PRESIDENT

 

Sd/-

(VINEETA RAI)

MEMBER Mukesh

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION  

REVISION   PETITION     NO. 98 OF 2013 (From the Order dated 4.08.2009 in F.A. No. 3469/2001 of 

Haryana State Consumer Disputes Redressal Commission, Panchkula) 

With 

IA/171/2013IA/172/2013

(DELAY & STAY) 

Smt. Krishna W/o Sh. Mohan Lal R/o Mahavir Nagar Tehsil and Distt. RewariPetitioner

 Versus

 Sub Divisional Officer (OP) Sub Division No.2 Rewari

Respondent BEFORE:                     HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER 

       HON’BLE MR. SURESH CHANDRA, MEMBER 

 For the Petitioner                           :              Mr. Himanshu Gupta, Advocate  Pronounced   on :     30 th   January, 2013   

PER SURESH CHANDRA, MEMBER 

This revision petition is directed against the order dated 4.8.2009 passed by the

State Consumer Disputes Redressal Commission, Haryana, Panchkula (‘State

Commission’ for short) by which the State Commission allowed First Appeal No.3469 of

2001 filed by the respondent / opposite party and set aside the order dated 8.8.2001

passed by the District Consumer DisputesRedressal Forum, Rewari.

2.         There is delay in filing  this revision petition for which the petitioner has filed I.A.

No.171 of 2013 praying for condonation of the delay. There is no indication about the

period of delay in the application of the petitioner and the space regarding the number

of days of delay has been left blank. Since the impugned order was passed on 4.8.2009

and the same was received by the petitioner on 18.8.2009 and yet the revision petition

came to be filed by the petitioner on 9.1.2013, it is seen that there is delay of 1150 days

beyond the prescribed period of limitation.

3.         We have perused the application filed by the petitioner for condonation of delay

and heard Mr. Himanshu Gupta, Advocate, counsel for the petitioner. It is submitted by

the petitioner that after engaging her counsel to pursue the First Appeal No.3469 of

2001 filed by the respondent  before the State Commission, she had engaged another

person, viz.,  Mr. Pradyuman Yadav, Advocate as her counsel. It is submitted that

though she was in touch with the said counsel but he kept on assuring her that the

appeal was pending before the State Commission. However, in the meanwhile she was

in dark about the impugned order of the State Commission accepting the appeal of the

respondent and as such believed that the matter was still pending for final decision. In

view of this, it is submitted by her that because of the conduct of her counsel, she was

misled and came to know about the decision of the State Commission against her some

time in 2012 and accordingly applied for certified copy which was received on

27.9.2012. Learned counsel has submitted that she is a poor lady who is not familiar

with the legal provisions and procedures, and as submitted in the application, the delay

in question was unintentional and occurred due to inadvertence and for the reasons

beyond the control of the petitioner since she was misled by her advocate.

4.         We have considered the application of the petitioner for the condonation of

delay. The reasons and the explanation put forth by the petitioner are general and

vague. Admittedly, no action has been taken by the petitioner against the Advocate who

is alleged to have kept her in the dark and thereby misled her regarding the decision of

the State Commission. According to the petitioner, the free copy of the impugned order

had been supplied to the parties/counsel on 18.8.2009. Without specifically denying the

knowledge about or the receipt of the free copy of the impugned order supplied by the

Commission, it is simply stated that the certified copy of the impugned order was not

received by her from her counsel. We are unable to accept this story which appears to

have been cooked up by the petitioner as an afterthought  to justify such a long and

inordinate delay of about three years in filing the petition.

5.         Besides the fact that no action was taken by the petitioner against the

concerned Advocate for this serious professional lapse on his part, it is unbelievable

that the petitioner would be unaware about the impugned order for such a long time. In

fact, it is stated in para 4 of the application that the petitioner instituted execution

proceedings on 31.8.2010 against the respondent for compliance of the order of the

District Forum dated 8.8.2001. Firstly, it is not understood as to how the petitioner could

file the execution petition without ascertaining the fate of the appeal filed by the opposite

party before the State Commission to which she was a party and where she had also

engaged a counsel for representing her. Besides this, if  she was really not aware of the

impugned order having been passed on 4.8.2009, it is not understood as to why she

waited for such a long time of more than 8 years to approach the District Forum for

execution of the order which had been passed on 8.8.2001. It is obvious that she must

have come to know about the impugned order but in order to justify the inordinate delay

on her part in filing the present revision petition and to prove her “bonafides” in the

matter, she has mentioned about the filing of the  execution petition on 31.8.2010.  In

this context, no documents have been placed before us, which would indicate institution

of the execution proceedings on 31.8.2010. Even if the execution petition was filed on

31.8.2010, it is highly improbable that the petitioner would not come to know about the

impugned order for the next more than two years of the pendency of the execution

petition before the District Forum. Nothing has been mentioned about the issuance of

notice by the District Forum in the execution proceedings to the respondent and further

progress of the execution petition.

6.         In view of the above factual position which emanates from the application and

the oral submissions made by learned counsel, we are not at all convinced about the

explanation and reasons put forth by the petitioner to justify the delay of more than three

years in filing this revision petition. Even after receipt of the certified copy on 27.9.2012,

the petitioner has taken more than 90 days to file the revision petition. In view of this,

her application for condonation of delay is dismissed. With this, the revision petition also

stands dismissed as hopelessly barred by limitation.

 

……………Sd/-……..………..     (AJIT BHARIHOKE, J.)      PRESIDING MEMBER

  

……………Sd/-……..………..     (SURESH CHANDRA)

      MEMBER

SS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION  NO. 2300  OF  2012

(Against the order dated 07.03.2012 in Appeal No. 905 of 2010of the State Commission Gujarat)

 

1.    Amitaben Dilipkumar Shah L.R. of Late Dilipkumar Rasiklal Shah 2.    Apexa Dilipkumar Shah L.R. of Late Dilipkumar Rasiklal Shah 3.    Smruti Dilipkumar Shah L.R. of Late Dilipkumar Rasiklal Shah 4.    Pratik Dilipkumar Shah L.R. of Late Dilipkumar Rasiklal Shah (all residents of 502, Nandishwardeep Apartment Parle Point, Surat) 

........ Petitioners 

Vs.

Varachha Co.op Bank Ltd. Effil Tower L.H.Road, Surat, Gujarat Through its Chief Manager / Branch Manager

......... Respondent 

BEFORE:

 HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON’BLE MR.SURESH CHANDRA, MEMBER  

For the Petitioners           :    Dr.Bipin K Dwivedi, Advocate

For the Respondent         :    Mr.Sanjay Mehta, Advocate

Dated :     30 th     January, 2013

 

ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

Petitioners are legal heirs of complainant

Late Shri Dilip Kumar Rasiklal Shah.  They have preferred this revision petition against

the impugned order of Gujarat State Consumer Disputes Redressal Commission ( in

short, ‘the State Commission’) whereby State Commission allowed the appeal preferred

by the respondent bank herein against the order of District Consumer

Disputes Redressal Forum ( Additional) of Surat which reads thus:

“1.    The complaint by the complainant is allowed as under.

2.     The opponent in the case has allowed a withdrawl of Rs.1,68,450/- vide cheque no.7780 in the frozen Account No.4226.  The said amount shall be credited in the Deceased Complainant’s Account with interest as per rules and regulations of the bank effective Dt.09.08.2005.

3.     The opponents in the matter shall pay to complainants in all sum of Rs.10,000/- (in words Rupees Ten Thousand only) towards cost of the complaint and mental physical torture.

4.     The complainants as per relief prayed under complaint para -5 is not entitled to any additional relief.

5.     The opponent shall bear the cost of suit himself.

6.     The opponent shall comply the order within 30 days of this order”.

2.       Briefly put, the facts relevant for disposal of this revision petition are that late

complainant filed consumer complaint against the respondent – opposite party claiming

that he had an account bearing no.4226 with the opposite party, namely, Varachha Co-

op Bank Ltd, Varachha  Road, Surat.  That on 04.12.2004 complainant gave written

instructions to the respondent– bank stating that he had lost certain cheques, as such

no payment be made against those cheques from his aforesaid bank account without

his written consent. That therespondent bank recorded the numbers of the lost cheques

in their register.  Despite that, bank allowed withdrawl of Rs.1,68,450/- from the bank

account no. 4226 of the complainant against one of those lost cheques bearing no.

7780 without informing or obtaining consent from the complainant.

3.       The respondent – bank contested the complaint by filing a written submissions

denying the allegations.  

4.       The District Forum after hearing the parties and on the basis of the evidence

produced came to the conclusion that the opposite party bank had encashed the

cheque regarding which stop payment instructions were issued from the bank account

no. 4226 of the complainant without seeking consent from him.  This according to the

District Forum amounted to deficiency in service.  As such,  District Forum allowed the

complaint and passed the order reproduced above.

5.       Feeling aggrieved by the order of the District Forum, the respondent  bank

preferred an appeal before the State Commission and the State Commission concluded

that the instructions issued by the deceased – complainant to the bank vide letter dated

14.02.2004 were unclear and vague and as such there was no deficiency in service on

the part of the bank.  Accordingly, the State Commission accepted the appeal and set

aside the order of the District Forum and also dismissed the complaint.

6.       Learned Shri Bipin K Dwivedi, Advocate for the petitioner has contended that

order of the State Commission is perverse and against the facts.  He argued that State

Commission was not justified in setting aside the well reasoned order of the District

Forum holding deficiency in service on the part of the respondent  bank despite the fact

that petitioner had not only given clear instructions not to encash certain cheques

without his consent from his account which were claimed to have been lost particularly

when numbers of those cheques were got entered in the “unused cheques register”

maintained by the respondent – bank.  In support of this contention, learned counsel for

the petitioner has drawn our attention to the petitioner’s letter dated 14.02.2004 as also

the photocopy of the relevant entry in the unused cheques register maintained by the

respondent bank.  It is further contended that the State Commission has committed a

grave error in holding that in  a business city like Surat, the bank is not supposed to

seek confirmation from the customer before encashing the cheque irrespective of the

customer having requested the bank not to allow operation of the bank

account.  Learned counsel thus urged us to accept the revision petition and set aside

the impugned order of the State Commission accepting the appeal against the order of

the District Forum.

7.       Shri Sanjay Mehta, Advocate, learned counsel for the respondent  bank on the

contrary has argued in support of the order of the State Commission.  He has drawn our

attention to the letter dated 14.02.2004 addressed by late complainant to the bank and

submitted that the letter in question is vague inasmuch as it does not mention a specific

account number in the subject and at the bottom of letter, there are five account

numbers mentioned under a note asking upto date statement of account. It is contended

that from this letter no instructions regarding stop payment of any cheque is perceived

and as such bank was not at fault in enashing the cheque which was presented in the

year 2005.  Learned counsel for the respondent  bank further contended that mere entry

of the cheque number in the unused cheque register relates to A/c No 0503/4226 by

itself does not mean that there were any instructions not to make payment against the

cheques detailed therein.  Learned counsel for the respondent further contended that

whenever a duly signed cheque is presented for encashment before the bank, the bank

is under a legal obligation to encash the cheque failing which the bank would risk legal

proceedings by the beneficiary of the cheque issued by the account holder.  Thus it is

contended that impugned order does not suffer from legal or factual infirmity which may

call for interference by this Commission in its revisionaljurisdiction, scope of which is

limited. 

8.       In order to appreciate the rival contentions, it would be useful to have a look on

the relevant portion of the impugned order of the State Commission

which interalia reads thus:

“Now, it is also necessary to be decided that whether the responsibility of blame to be poured out on the Bank of any dispute between the Deceased Complainant and with his professional friends.  And any refund’s cheque number 775629 drawn on State Bank of Saurashtra for Rs. 1,68,476 by the Surat Municipal  Corporation and

that was collected by the Architeet Parikshitlal Talati and that cheque was to be given to Deceased Complainant instead of that, has given to MansukhlalSanghani and that cheque was deposited in the Account No.4226 of Deceased Complainant and thereafter, that amount was withdrawn from the Account Number 4226 and while the aforesaid cheque deposited in the account of Deceased Complainant at the relevant time may have presented that cheque in the Bank to obtain amount with the signature of Deceased Complainant, so obviously information have to Deceased Complainant as to whose name that cheque is wrote and hence, the Deceased Complainant could have stopped payment of that cheque instead of unclear and vague language in the letter dated 14.02.2004.  And to be obtained written consent of deceased person for each and every cheque which may submit and arrangement of bank may disturb if every account holder may write letter according to that and it seems that now the  responsibility is being poured out on the bank in any dispute in respect of refund amount obtained from the Corporation.  And the learned Forum has recorded in their judgment that the Bank could have demanded more clarity regarding that letter for the aim of better services to be provided to the Deceased Complainant.  But that responsibility is not of the bank and account holder is bound to inform amount of cheque, date, number, account number in which person’s favour which has wrote, and hence  Learned Forum’s Judgment is not proper and justified and therei interfere is required, so the appeal is granted and final order is being passed”.

9.       On perusal of above, we find that the State Commission has accepted the appeal

against the order of the District Forum mainly for the reason that the instructions dated

14.02.2004 given by the complainant to the respondent bank was vague and it could not

be treated as clear instructions of ‘stop payment’. On careful consideration of record, we

find that aforesaid conclusion of the State Commission is erroneous as the State

Commission while arriving at the conclusion has ignored the fact that the numbers of

cheques stated to have been misplaced vide instructions dated 14.02.2004 were

recorded by the respondent bank in the unused cheque register officially maintained in

this regard.  Photocopy of the unused cheque register maintained by the respondent

bank is available on record.  On perusal of the aforesaid photocopy, we find that on

14.02.2004, the entry regarding seven unused cheques pertaining to the bank account

no.4226 of the complainant including cheque no.7780, which is the bone of contention

in this revision, was actually made by the respondent bank in the unused cheque

register pursuant to the instructions dated 14.02.2004 of the complainant.  From this, it

is obvious that the respondent bank actually understood the instructions given by the

complainant and it is because of the said reason, the entries pertaining to unused

cheques was made in the unused cheque register.  That being the case, the respondent

bank now cannot take shelter of vagueness in the letter dated 14.02.2004 of the

complainant addressed to the respondent bank.  From the above referred entry in the

unused cheque register, it is clear that on 14.02.2004, the respondent bank was fully

aware that as per the instructions of the complainant, the cheques entered in the

unused cheque register were not to be encashed without first referring to the

complainant.  Admittedly, the respondent bank encashed one of those cheques bearing

no.7780 for Rs.1,68,450/- relating to account no.4226 of the complainant without

referring to and seeking instructions from the complainant.  This in our view obviously

amount to deficiency in service.  The State Commission has allowed the appeal of the

respondent bank against the order of the District Forum without taking into account the

entries made in the relevant unused cheque register maintained in the bank.  Thus in

our view, the order of the State Commission suffers from material irregularity and is

unsustainable.  Accordingly, we accept the revision petition and set aside the impugned

order of the State Commission and restore the order of the District Forum.  No order as

to costs. 

         

                                                                …………………………

     (AJIT BHARIHOKE,J)       PRESIDING MEMBER

 

                                                                   …………………………                                                        (SURESH CHANDRA)                                                                            MEMBER

Am/

 

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

          FIRST APPEAL NO. 279 OF 2007

(Against the order dated 21.02.2007 in O.P. No. 108/99 of the Tamil Nadu State

Consumer Disputes Redressal Commission, Chennai)

 

Smt. V. Bhavani W/o S. Vijayraja No. 18, Srirengapalayam East Kumarasamy Raja Nagar Rajapalayam                                                      …      Appellant

 

Versus

Dr. S. Siva Subramaniam M.S.M.R.S.H. (London) Karthik Nursing Home Chettiarpatti Rajapalayam

                                                      …      Respondent

 

BEFORE:

          HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

 

For Appellants                   :   Mr. V. Prabhakar, Advocate

For Respondent                :   Ms. Hetu Arora Sethi, Advocate

 

Pronounced on     30 th   January, 2013

ORDER

PER VINEETA RAI, MEMBER 

1.      Smt. V. Bhavani, original complainant before the Tamil Nadu State Consumer

Disputes Redressal Commission, Chennai (hereinafter referred to as the State

Commission) and Appellant herein had filed this first appeal being aggrieved by the

order of that Commission which had dismissed the complaint of medical negligence

against Dr. S. Sivasubramaniam, Respondent herein and Opposite Party before the

State Commission.

FACTS :

2.      Appellant approached Respondent for treatment of irregular menstrual bleeding

on 24.02.1998 and Respondent after examining her and conducting relevant tests

advised that she be admitted in the Hospital for undergoing a Trans Cervical

Endometrial Resection (TCER).  She was required to purchase the medicines from

Respondent’s clinic and also pay Rs.3000/- for the surgery.  The surgery, which lasted

nearly four hours, was conducted under epidural anaesthesia but because the surgical

tools and apparatus were not sterilized in advance and there was no pre-arrangement

for a generator in case of power failure, which failed four times during the surgery, she

experienced severe pain during the surgery and on the third day from the surgery she

developed Sepsis, resulting in high fever, body pain, retention of urine and abdominal

swelling.  Respondent prescribed some medicines but she suffered renal failure and her

husband was advised to admit her to Meenakshi Mission Hospital for treatment of renal

failure.  She was shifted to that Hospital and admitted in the Intensive Care Unit, where

she was treated for Septicaemia, Jaundice and Renal Failure and was also put on

ventilator support.  Because of the sincere and effective steps taken by a team of

doctors at that Hospital, the Patient recovered from her coma and though she was

discharged from the Hospital, she continues to have joint pains, nervous weakness and

shrunken kidneys because of which she might need renal transplantation in due

course.  Being aggrieved because of the medical negligence on the part of Respondent,

which resulted in enormous pain and suffering as also heavy expenditure, Appellant

issued a legal notice to him claiming a sum of Rs.15 Lakhs as damages and

compensation for medical negligence and deficiency on his part.  Respondent, however,

sent an evasive reply and denied the charges.  Aggrieved by this, Appellant filed a

complaint before the State Commission and requested that the Respondent be directed to pay her

total amount of Rs.15 Lakhs as compensation under the following heads:1) Medical expenses .. Rs.3,50,000-00

2) Attendance and Nutrition till 6-5-98 .. Rs.50,000-003) Pain and suffering and Transportation .. Rs.4,00,000-004) Future attendance for transplantation,

Nutrition and Hospital.. Rs.3,00,000-00

5) Reducal of the normal span of life and damage

.. Rs.4,00,000-00

  Total .. Rs.15,00,000-00”

 

3.      Respondent on being served filed a written reply denying that there was any

medical negligence on his part, as alleged by the Appellant.  The charge that the

equipments were not sterilized was specifically denied by Respondent, who stated that

the Resectoscope, Telescope and Cautery Loops were sterilized by immersion in cidex

solution prior to the surgery as also all other equipments, which included electrical

cords, suction and irrigation tubes as per standard procedure.  It was also specifically

denied that there was any power-cut during the surgery, which was completed within an

hour.  Since the Patient was under epidural anaesthesia throughout the surgery, the

possibility of her seeing anything, including her contention that there was a power

failure, is not factually correct.  After successful completion of the surgery, the Patient

was recovering satisfactorily until the fourth day when it was noted that her urine output

was very low and, therefore, her Blood Urea and Serum Creatinine were tested and

found to be high.  After medical examination, Appellant was diagnosed with Acute Renal

Failure and immediately referred to Meenakshi Mission Hospital for

Dialysis.  Respondent stated that even after examination in Meenakshi Mission Hospital

he visited her to check her progress and the doctors there informed him that she had

developed Respiratory problems, Jaundice and Vomiting and, therefore, put on

ventilator and kept in the Intensive Care Unit.  However, she never lost consciousness

and subsequently recovered.  Respondent gave the best possible medical treatment

and care exercising the required professional skills needed in this case.  The post-

operative condition was because of her pre-existing renal problems, for which she was

also taking treatment.  Therefore, the charges of medical negligence and deficiency in

service are totally baseless. 

4.      The State Commission after hearing the parties and considering evidence before it

concluded that no case of medical negligence could be established against the

Respondent.  The relevant part of the State Commission’s observations in this regard is

reproduced:“…  In the present case the allegation that due to improper sterilization of instruments the complainant suffered septicaemia has also not been substantiated.  The opposite party has clearly set out his stand in the version and in the proof affidavit to the effect that the instruments like Resectoscope

Telescope and Cautery Loops were all sterilized by immersion in Cidex solution and that it was carried out in the morning of 26/2/98 and the Electrical chords, suction and irrigation tubes were all sterilized by keeping in Formaline tray in the previous night itself.  Cidex is the brand name of Activated Glutaradehyde Solution which is used as a sterilant and high level disinfectant into which sensitive instruments could be immersed to attain fully sterilized conditions prior to surgical procedures.  The opposite party had followed all accepted procedures with regard to sterilization of equipments prior to the start of the medical procedure on the complainant.  Even with regard to the post operative surgical care, it has already been noted that the complainant had been given proper medicines and she was also put on I.V. fluids.  It is also to be noted that the opposite party had stated that the complainant brought to his attention her previous history of renal disorder and the treatment she was undergoing from Dr. Dhanam only after the operation was completed by him.  This fact had not been controverted by the complainant.  There was already a history of renal failure and treatment which the complainant had been following, which, for reasons best known to her, she had not disclosed to the opposite party.  The complainant has not substantiated her case set out in the complaint.  She has not established that the opposite party was negligent and consequently there was deficiency in service on his part while treating the complainant.  She has not produced any expert evidence in support of her stand.  She has not chosen to controvert the contents of the affidavit of Dr. Sampathkumar who treated her at the Meenakshi Mission Hospital and who has given a clean chit to the opposite party with regard to the treatment given to the complainant in Karthik Nursing Home.”

 

Hence, the present first appeal.

5.      Learned counsel for both parties made oral submissions. 

6.      Learned counsel for the Appellant reiterated that the State Commission erred in

concluding that there was no medical negligence whereas it was clearly established that

the infection leading to renal failure occurred because the surgical equipments were not

properly sterilized and the situation was further aggravated because the electric supply

failed four times during the critical surgery.  In proof of these contentions, it was stated

that prior to the surgery the blood test did not indicate the presence of any bacteria or

infection whereas the Blood Culture conducted after the surgery and which takes 3 to 7

days to confirm, clearly indicated that there was infection.  Obviously, this occurred

during the surgery and because of the non-sanitary conditions in the operation theater

and non-sterilized surgical equipments.  He brought to our attention the medical history

of the Appellant, which did not indicate that she had any pre-existing problem, apart

from the menstrual problems which necessitated the TCER.  It was also specifically

stated that the epidural anaesthesia being mild, the Appellant was fully conscious during

the surgery and, therefore, her observation of power failure is based on facts.

7.      Counsel for Respondent on the other hand reiterated that he was a well-qualified

doctor, who had conducted several surgeries, and that after the clinical examination and

laboratory investigations, the Appellant was diagnosed as suffering from chronic

cervicitis with dysfunctional uterine bleeding because of which she underwent TCER,

which is a standard management procedure in such cases.  The surgery was conducted

with properly sterilized state of the art equipments and there was no negligence or

deficiency in conducting the surgery and there was also no power failure.  During the

surgery it was found that the entire Endometrium was badly affected due to infection

and it was possible that the infection had spread to the bloodstream earlier and was in a

dormant stage since the uterine cavity is not an absolutely sterilized area.   Further, this

also would explain the subsequent Sepsis which was not due to any negligence in the

surgery or non-sterilization of the equipments.  Counsel for the Respondent further

stated that the Nephrologist from the Meenakshi Mission Hospital, who had treated the

Patient, had filed an affidavit before the State Commission as an expert, in which he

clearly stated that the renal failure and other problems encountered by the Patient were

not due to any negligence or deficiency in service on the part of Respondent but due to

pre-existing endomentrial infection and because of which occurrence of Septicaemia is

an inherent and accepted complication of TCER.  The State Commission had, therefore,

rightly concluded that there was no medical negligence on Respondent’s part and had

rightly dismissed the Appellant’s complaint.

8.      We have heard learned Counsel for both parties and have carefully gone through

the evidence on record.  Patient’s admission in Respondent’s clinic with complaints of

irregular menstrual bleeding and related problems, where she underwent TCER

surgery, are admitted facts.  It is also a fact that four days following the surgery, she

suffered from symptoms of Septicaemia, retention of urine and renal failure, because of

which she was referred to another Hospital, wherein she was treated for the same and

discharged after recovery.  Appellant’s contention that the Septicaemia and the renal

failure problems occurred because of insanitary conditions in the operation theater as

also non-sterilization of the equipments, we note, is not borne out by any independent

or credible evidence to prove the same.  It is merely Appellant’s conjecture to explain

the subsequent complications.  Apart from this, we agree that a Patient who is under

epidural anaesthesia is unlikely to observe during that period that power was disrupted

on four occasions during the surgery.  Therefore, this is also based on either conjecture

or hearsay and cannot be relied upon.  On the other hand, we note from the evidence

on record that due care was taken in treating the Patient in respect of the diagnosis as

also the medical treatment and the Respondent’s explanation that the Septicaemia

occurred because a pre-existing infection is confirmed by the evidence of an expert,

Nephrologist from the Meenakshi Mission Hospital and Research Centre, where the

Patient was subsequently admitted, and who stated on affidavit as follows :-“9.        …  it was a known fact that Mrs. V. Bhavani was suffering from chronic cervicitis and endometritis even before TCRE, for over a period of 6 months.  She underwent TCRE for removing the infected endometrium.  In such a situation, in spite of the reasonable care and skill exercised by the surgeon, there is every possibility that the pre-existing infection could enter into the blood stream through the cut ends of the capillaries (the terminal end of an arteriole which are fine hair-like blood vessels forming a network) in the inner wall of the uterus after the removal of the endometrium.  This possibility can neither be fully anticipated nor prevented.  In my view this should have been the most probable reason for septicaemia suffered by Mrs. V. Bhavani after TCRE.  This septicaemia should have given rise to the other ailments including the acute renal failure suffered by Mrs. V. Bhavani.

 10.       I submit that the renal problems encountered by Mrs. V. Bhavani was not due to any negligence or deficiency of service on the part of Dr. S. Sivasubramanian; but it is due to the pre-existing endometrial infection and in such a situation occurrence of septicaemia is an inherent and accepted complication of the TCRE.  Even when a surgeon exercises best care and skill, such complications do occur.  In this case, Dr. Sivasubramanian responded with a sense of urgency and referred Mrs. V. Bhavani for further management to me within time.  In fact it is because of this immediate response that we could prevent further deterioration in the clinical condition of Mrs. V. Bhavani thereby saving her life.”

 

This evidence has not either been controverted or challenged by the Appellant, on

whom there was onus to prove that there was medical negligence.  On the other hand,

from the evidence on record as also the expert opinion of the Nephrologist from a

Hospital where the Appellant was admitted and in whom she admittedly had full faith

clearly confirms that there was no medical negligence or deficiency in service in the

medical diagnosis, treatment and post operative care of the Appellant.

9.   What constitutes medical negligence is now well established [Jacob Mathew v.

State of Punjab, (2005) 6 SCC 1] and essentially three principles are required to be

followed: (i) Whether the doctor in question possessed the medical skills expected of an

ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor

adopted the practice (of clinical observation diagnosis – including diagnostic tests and

treatment) in the case that would be adopted by such a doctor of ordinary skill in accord

with (at least) one of the responsible bodies of opinion of professional practitioners in

the field and (iii) whether the standards of skills/knowledge expected of the doctor,

according to the said body of medical opinion, were of the time when the events leading

to the allegation of medical negligence occurred  and not of the time when the dispute

was being adjudicated.

10.      In the instant case, there is adequate evidence as discussed in the foregoing

paras to conclude that on all these counts the Respondent, who was a well-qualified

doctor, used his best professional judgment and the required medical skills to diagnose

the Appellant’s illness and thereafter conduct the required surgery and also take due

post-operative care, including referring her to a higher medical institution when it was

considered necessary.  We, therefore, agree with the order of the State Commission

that there was no medical negligence in this case and uphold the same.

11.      The present first appeal having no merits is, accordingly, dismissed.  No costs.     

Sd/-

(ASHOK BHAN, J.)

PRESIDENT

 

Sd/-

(VINEETA RAI)

MEMBER Mukesh

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO. 3176 OF 2012(From the order dated 23.08.2011 in Appeal No. 5008 of 2010 of the Karnataka State

Consumer Disputes Redressal Commission, Bangalore)

 

Mallikarjun S/o Jagdevappa Durga R/o Harsur Village, Gulbarga Taluk & District Karnataka State.

                                                …         Petitioner/Complainant

                                        Versus 1. The Oriental Insurance Co. Ltd. By its Divisional Manager Opp Mini Vidhana Soudha    Main Road, Gulbarga Karnataka State Herein represented by Regional Office, 44/45, Leo Shopping Complex, Residency Road, Bangalore – 560025.

                                          …    Respondents/OP-1

 

 2. Mysore Sales International Ltd. III Floor, Asian Plaza Sardar Vallabha Bhai Patel Chowk Gulbarga, Karnataka State.

                                                 …    Respondents/OP-2

 

BEFORE

 

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

           For the Petitioner                 :     Mr. N.K. Verma, Advocate

                 

PRONOUNCED ON 30 th   January,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER  

          This revision petition has been filed by the petitioner against the impugned order

dated 23.08.2011 passed by the Karnataka State Consumer Disputes Redressal

Commission, Bangalore (in short, ‘the State Commission’) in Appeal No. 5008 of 2010 –

The Oriental Ins. Co. Ltd. Vs. Mallikarjun & Anr. by which while allowing appeal, order of

District Forum was set aside, and complaint was dismissed.

2.       Brief facts of the case are that petitioner/complainant was registered owner of

Motor Cycle KA-32/R-8285 which was insured by OP-1/Respondent No. 1 and financed

by OP-2/Respondent no.2.  Complainant parked his vehicle in parking place of office

premises on 6.9.2008 which was stolen by someone and he lodged report with the

police authorities on 9.9.2008 and intimated to Respondent/Insurance Company on

10.9.2008.  As claim was not settled by Respondent no. 1, complaint was filed.  OP

contested claim and OP-1 further submitted that complainant has not informed them

about commission of theft within 48 hours, hence, complaint is liable to be dismissed.

Learned District Forum after hearing both the parties allowed complaint and directed

OP-1/Respondent No.1 to pay a sum of Rs.35,000/- along with 9% p.a. interest,

Rs.5,000/- as compensation, Rs.2,000/- as litigation charges and further directed that

out of the said amount, Rs.17,000/- be paid to OP-2/Respondent No.2.  Respondent

No. 1 filed appeal and learned State Commission vide impugned order allowed appeal

and dismissed complaint, hence, this revision petition was filed.

3.       Heard Learned Counsel for the petitioner at admission stage and perused record.

4.       Petitioner moved application for condonation of delay of 321 days and submitted

that copy of impugned order dated 23.8.2011 was received by him in the first week of

October, 2011 and petitioner sent papers to his Counsel in Delhi for filing revision

petition. It was further alleged that parcel of documents was missing in the office of

Counsel and petitioner was under the impression that revision petition has been filed

but on an inquiry in July, 2012 he came to know that petition had not been filed.  Later

on, his documents were traced and petition was filed and prayed for condonation of 321

days delay in filing revision petition.  As per office report, there is delay of 259 days in

filing revision petition.

5.       Learned Counsel for the petitioner submitted that delay is bonafide as petitioner

had already sent papers to his Counsel, hence, delay may be condoned and petition

may be proceeded further.

6.       As alleged in the application, petitioner received copy of order in the first week of

October 2011 and sent it to his Counsel in Delhi.  He has not mentioned to whom these

papers were sent and when his papers were  not traceable in the office of his

Counsel.  He has also not mentioned when these papers were traced and in these

circumstances, there appears to be no explanation at all about delay of 259 days in

filing revision petition.  He has not filed any affidavit of Counsel in whose office

petitioner’s papers were missing.  On account of inordinate delay of 259 days without

any explanation application for condonation of delay deserves to be rejected and

consequently revision petition is also liable to be dismissed on the count of delay.

7.       As far merits of the case are concerned, learned District Forum dismissed

complaint as complainant did not inform to OP/Respondent No. 1 within 48 hours of

theft and thus violated terms and conditions of insurance policy and learned State

Commission has not committed any error in allowing appeal and dismissing complaint

on account of delayed information to Insurance company.

8.       Consequently, revision petition is dismissed at admission stage on the count of

delay as well as on merits with no order as to costs.

 ..……………Sd/-………………

( K.S. CHAUDHARI, J)

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO.   186 OF 2013 (From the order dated 01.10.2012 in Appeal No.260 of 2012 of the State Consumer

Disputes Redressal Commission, UT, Chandigarh)

 

HDFC ERGO General Insurance Co. Ltd. Zonal Office N-22, 2nd Floor, Sector 18 NOIDA – 201301 (U.P.).

                                                                                       …            Petitioner/OP

                                       Versus

 Rachhpal Singh S/o Sh. Gurcharan Singh House No.1156/1, Sector-44B, Chandigarh

                                                   …    Respondent/Complainant

 

BEFORE

 

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

 

          For the Petitioner                 :     Mr. K.L. Nandwani, Advocate

                  

PRONOUNCED ON 30 th   January ,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER  

          This revision petition has been filed by the petitioner against the impugned order

dated 1.10.2012 passed by the State Consumer Disputes Redressal Commission, UT,

Chandigarh  (in short, ‘the State Commission’) in Appeal No. 260 of 2012 – HDFC

ERGO General Insurance Co. Ltd. & Anr. Vs. Rachhpal Singh by which while

dismissing appeal, upheld order of District Forum allowing complaint.

2.       Brief facts of the case are that complainant/respondent got

Health Suraksha Policy from OP/petitioner for a period of one year commencing from

3.9.2009 to 2.9.2010.  On 8.11.2009, complainant was admitted in Fortis Hospital for

treatment.  Bye-pass surgery was done on 10.11.2009 and he was discharged on

17.11.2009 and he incurred expenses of Rs.2,29,492/- on the treatment.  Complainant

lodged claim with OP which was repudiated by OP on the ground that complainant was

suffering from pre-existing disease.   Complainant filed complaint alleging

deficiency.  OP contested complaint before the District Forum and submitted that as

complainant was suffering from pre-existing disease, his operation and treatments were

not covered under the policy.  Learned District Forum after hearing both the parties

allowed the complaint against which appeal filed by the petitioner was dismissed on the

count of 75 days delay in filing appeal as well as on merits.

3.       Heard learned Counsel for the petitioner at admission stage and perused record.

4.       Learned Counsel for the petitioner submitted that learned State Commission has

committed error in dismissing appeal on the ground of delay of 75 days in filing appeal

and submitted that learned State Commission ought to have condoned delay in filing

appeal.  It was further submitted that learned State Commission committed error in

dismissing appeal on merits also, hence, petition be admitted.

5.       It is admitted fact that petitioner preferred appeal before the learned State

Commission after 75 days. Learned State Commission has dealt in length application

for condonationof delay and has rightly disallowed application for condonation of delay

after citing many judgments of Hon’ble Supreme Court and other High

Courts.  Impugned order reveals that appeal was prepared and sent to petitioner on

2.5.2012, but appeal was filed on 30.7.2012 and apparently there was no plausible

explanation regarding condonation of delay from 2.5.2012 to 30.7.2012.  Hon’ble Apex

Court in (2012) 3 SCC 563 – Post Master General & Ors. Vs. Living Media India Ltd.

and Anr. has not condoned delay in filing appeal even by Government department and

further observed that condonation of delay is an exception and should not be used as

an anticipated benefit for the Government departments. Learned State Commission also

relied on 2012 (2) CPC 3 (SC) – Ansul Aggarwal Vs. New Okhla Industrial Development

Authority in which it was observed :“It is also apposite to observe that while deciding an application

filed in such cases for condonation of delay, the Court has to keep

in mind that the special period of limitation has been prescribed

under the Consumer Protection Act, 1986, for filing appeals and

revisions in Consumer matters and the object of expeditious

adjudication of the Consumer disputes will get defeated, if this

Court was to entertain highly belated petitions filed against the

orders of the Consumer Foras”.

  

Thus, it becomes clear that unless there is reasonable explanation, delay cannot be

condoned.  Learned Counsel for the petitioner placed reliance on 2009 (II) SCALE –

State of J&K & Ors. Vs. Mohmad Mazbool Sofi & Ors. in which the matter was

remanded back by Hon’ble Apex Court to the High Court for fresh consideration as High

Court refused to condone delay of 97 days. This citation does not help to the petitioner

in the light of latest judgments of Apex Court and particularly when no reasonable

explanation has been given forcondonation of delay of 75 days.

6.       Learned State Commission also dismissed appeal on merits and I do not find any

infirmity in the order passed by the learned State Commission. Petitioner was duty

bound to supply the terms and conditions of the policy to the complainant immediately

after receipt of premium and as petitioner failed to supply terms and conditions of the

policy to the complainant immediately, claim could not have been repudiated by

petitioner/OP on the basis of terms and conditions of policy. I do not find any illegality or

material irregularity or jurisdictional error in the matter and revision petition is liable to be

dismissed at admission stage.

7.       Consequently, revision petition filed by the petitioner is dismissed at admission

stage with no order as to cost.

..………………Sd/-……………

( K.S. CHAUDHARI, J)

 MEMBERK

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO.   507 OF 2012 (From the order dated 28.07.2011 in Appeal No.555/09 of the Gujarat State Consumer

Disputes Redressal Commission, Ahmedabad)

 

M/s. Karuna Sagar Tractor Sales & Service Residing at Near Chikhdra Chokdi, At & PO Anand, Distt. Anand, Gujarat State

                                                           …  Petitioner/OP-1

                                       Versus Jagrut Nagrik’s Managing Trusty P.V. Murjani, 3rd Fl., Amin Building, Genigate, Vadodara, Gujarat.

… Respondent-1/Complinant-1

 2. Legal Heirs of Laljibhai Punjabhai Parmar:  Vasantbhai alias Vishnubhai parmar Vasantbhai Laljibhai Parmar Residing at 3rd Pole, Vadtal, Distt. Nadiad, Gujarat

… Res.-2/Complainant-2

 3. MRF Ltd. Opp. Fertilizer, Near Main gate, Chhani, Vadodara, Gujarat.

… Respondent.-3/Complainant-3

 4. Senior Sales Executive MRF Ltd. Gr. Fl., “Mahakant” Near V.S. Hospital Ellis bridge, Ahmedabad, Gujarat.

… Respondent.-4/Complainant-4

 

5. Punjab Tractor Ltd. Sahibzada Ajitsinh Nagar Phase IV, Distt. Ropar Near Chandigarh Punjab.

… Respondent.-5/Complainant-2 

BEFORE

 HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

For the Petitioner      :      Mrs. Girija Wadhwa, Advocate

PRONOUNCED   ON     31 st   January,     2013

 O R D E R

  PER   JUSTICE K.S. CHAUDHARI, MEMBER

          This revision petition has been filed by the petitioner against the impugned order

dated 28.7.2011 passed by the Gujarat State Consumer

Disputes Redressal Commission, Ahmedabad (in short, ‘the State Commission’) in

Appeal No. 555/09 by which while allowing appeal partly, filed by the petitioner, order of

District Forum was modified and amount awarded by District Forum was reduced.

2.       Complainants/Respondent Nos. 1 & 2 filed complaint against OP/petitioner and

Respondent Nos. 3,4 & 5 and District Forum allowed complaint and ordered that

Complainant No. 2 is entitled to receive Rs.1,07,975/-  from OP Nos. 1 & 2 along with

interest @ 9% p.a. and Rs.10,000/- for mental agony and Rs.3,000/- as cost.  This order

was challenged by appellants/petitioner and Respondent No. 5 before the State

Commission and learned State Commission vide impugned order dated 28.7.2011

partly allowed appeal and modified order passed by District forum and held that OPs

are liable to pay Rs.90,000/- with 9% interest from the date of  impugned order till

realization against which this revision petition has been filed.

3.       Hard learned Counsel for the petitioner at admission stage and perused record.

4.       Revision Petition has been filed with delay. Petitioner moved application

for condonation of delay and submitted that petitioner is sick since more than 5 months

because of heart trouble and operated, hence, delay of 5 months and 25 days in filing

appeal may be condoned. As per office report, there is delay of 91 days in filing this

revision petition.  Petitioner has not placed any document pertaining to his heart

operation.  Petitioner has annexed only prescription dated 27.9.2011 and further check

up on 2.11.2011, 1.12.2011, 2.1.2012, 12.1.2012 and 17.1.2012 on which dates his

blood pressure was checked and some medicines were prescribed.  He has also

annexed ECG taken on 27.9.2011. Thus, it becomes clear that petitioner was checked

by Doctor from 2.1.2012 to 17.1.2012 after a gap of one month every time. Merely

because petitioner was checked up by physician after a month every time, it cannot be

inferred that petitioner was not in a position to file revision petition.  No reasonable

explanation has been given for condonation of delay of 91 days. 

5.       Hon’ble Apex Court in (2012) 3 SCC 563 – Post Master General & Ors. Vs. Living

Media India Ltd. and Anr. has not condoned delay in filing appeal even by Government

department and further observed that condonation of delay is an exception and should

not be used as an anticipated benefit for the Government departments. Learned State

Commission also relied on 2012 (2) CPC 3 (SC) – Ansul Aggarwal Vs.

New Okhla Industrial Development Authority in which it was observed :“It is also apposite to observe that while deciding an application

filed in such cases for condonation of delay, the Court has to keep

in mind that the special period of limitation has been prescribed

under the Consumer Protection Act, 1986, for filing appeals and

revisions in Consumer matters and the object of expeditious

adjudication of the Consumer disputes will get defeated, if this

Court was to entertain highly belated petitions filed against the

orders of the Consumer Foras”.

  

Thus, it becomes clear that unless there is reasonable explanation, delay cannot be

condoned.  Learned Counsel for the petitioner placed reliance on 2009 (II) SCALE –

State of J&K & Ors. Vs. Mohmad Mazbool Sofi & Ors. in which the matter was

remanded back by Hon’ble Apex Court to the High Court for fresh consideration as High

Court refused to condone delay of 97 days. This citation does not help to the petitioner

in the light of latest judgments of Apex Court and particularly when no reasonable

explanation has been given forcondonation of delay of 75 days.

6.       As there is no satisfactory explanation for condonation of 91 days delay in filing

revision petition, and order of District Forum allowing complaint has been upheld by

learned State Commission except modifying amount to some extent, revision petition is

liable to be dismissed on the count of delay alone.

7.       Consequently, revision petition filed by petitioner is dismissed on the count of

delay at admission stage with no order as to costs.    

 

..………………Sd/-……………

( K.S. CHAUDHARI, J)

PRESIDING  MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO. 4473 OF 2012(From the order dated 4.10.2010 in Appeal No.540/08 of the State Consumer Disputes

Redressal Commission, Delhi)

 

Smt. Sapna Jain W/o Sh. Naveen Jain M/s. Paras Holidays Pvt. Ltd. 321-322, Gold Plaza Building Gurudwara Road, Karol Bagh, New Delhi – 110005

                                                            …            Petitioner/OP

                                   Versus Jai Pal Singh S/o Sh. Ganga R/o House No.29, Sector 14, Sonepat, Tehsil and Distt. Sonipat, Through its Power of Attorney Sh. Pawan Kumar S/o Sh. Rattan Lal, R/o House No.1134, Sector-14, Sonepat, Haryana.

                               …    Respondent/Complainant

 

BEFORE

 

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

 

          For the Petitioner                 :     Mr. Baldev Singh, Advocate

                  

PRONOUNCED ON       31 st   January,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

          This revision petition has been filed by the petitioner against the impugned orders

dated 4.10.2010 and 20.3.2012 passed by the State Consumer Disputes Redressal

Commission, Delhi (in short, ‘the State Commission’) in Appeal No. 540 of 2008 – Smt.

Sapna Jain vs. Sanjay Goyal & Ors. by which appeal filed by the petitioner was

dismissed in default and restoration application was also dismissed. 

2.       Petitioner/appellant filed appeal before the State Commission challenging order of

District Forum.  Petitioner’s appeal was dismissed in default in presence of Counsel for

the respondent by learned State Commission vide impugned order dated

4.10.2010.  Later on, petitioner filed restoration application and that too was also

dismissed by impugned order dated 20.3.2012 and both these orders have been

challenged by the petitioner in this revision petition. 

3.       Petitioner also moved application for condonation of delay and submitted that

order dated 20.3.2012 was received by petitioner on 15.4.2012 and he approached Shri

Ravinder Singh Chaudhary, Advocate who apprised him that revision can be filed within

180 days and he assured to file revision petition and obtained petitioner’s signatures on

papers and affidavits.  It was further alleged that petitioner got notice of execution on

6.11.2012 and then rushed to the office of her Advocate Shri R.S. Chaudhary and from

there she came to know that no revision was filed.  Then petitioner approached her

previous Counsel and then this revision petition was filed on 26.11.2012, hence, delay

of 125 days in filing revision petition may be condoned.  

4.       Heard learned Counsel for the petitioner at admission stage and perused record.

5.       As far order dated 26.11.2012 is concerned, this order is in accordance with law

as the State Commission had no power of review its earlier order of dismissal in

default. Learned Counsel for the petitioner could not show any law on account of which

order dated 20.3.2012 can be assailed.  As this order is in accordance with law, the

revision petition is liable to be dismissed.

6.       Order dismissing appeal in default was passed on 4.10.2010 and this order has

been challenged by this revision petition on 26.11.2012,  thus there is delay of 687 days

in filing revision petition.  Learned Counsel for the petitioner submitted that time taken in

filing restoration application and its disposal has to be condoned as at the time of filing

restoration application, State Commission used to restore appeals dismissed in default

and later on as per Apex Court’s judgment, State Commission had no power to review

its order, hence, restoration application was rejected.

 7.      For the sake of argument if this period is condoned even then there is delay of

125 days in filing this revision petition from the date of dismissal of restoration

application. Petitioner has submitted in his application that he received copy of order on

15.4.2012 and approached Shri R.S. Chaudhary, Advocate who apprised him that

period of limitation for filing revision petition is 180 days and he would be filing revision

petition.  It appears that petitioner was very careless and never enquired from her

Counsel whether the revision petition has been filed or not, and only after receiving

notice of execution on 6.11.2012, she enquired from her Counsel and came to know

that revision petition has not been filed.  On the very day, Mr. R.S. Chaudhary,

Advocate returned papers to the petitioner.  When petitioner contacted her previous

Counsel on the same day even then revision petition was filed after 20 days and no

reasonable explanation has been given for condonation of 20 days delay.  Learned

Counsel for the petitioner also could not show whether any action was taken against

Shri R.S. Chaudhary, Advocate for not filing revision petition in time and in such

circumstances, merely on the basis of affidavit of petitioner it cannot be presumed that

she approached Shri R.S. Chaudhary, Advocate for filing revision petition who did not

file revision petition in time. As the revision petition has been filed after a period of 125

days from the date of restoration order dated 20.3.2012 and after 687 days from order

dated 4.10.2010 dismissing appeal in default and there is no reasonable explanation for

condonation of delay, the revision petition is liable to be dismissed on the count of delay

alone at admission stage.

 8.       Consequently, revision petition filed by the petitioner is dismissed at admission

stage with no order as to cost.

 

..……………Sd/-………………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO. 3989 OF 2011(From the order dated 28.08.2011 in Appeal No.2010/827 of the State Consumer

Disputes Redressal Commission, Delhi)

 

G.M. Satyapriya E-209, Bathia Apartment 43, IP Extension, Patparganj, Delhi – 110092

                                                            …  Petitioner/Complainant

                                       VersusBank of India Through The Branch Manager, Patparganj, Delhi – 110092

                                   …  Respondent/OP

 

BEFORE

 

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

 

          For the Petitioner                 :     Mr. G.M.V. Ramana, Advocate

          For the Respondent             :     Mr. Shweta Kapoor, Advocate

         

PRONOUNCED ON       31 st   January,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

          This revision petition has been filed by the petitioner against the impugned order

dated 28.08.2011 passed by the State Consumer Disputes Redressal Commission,

Delhi (in short, ‘the State Commission’) in Appeal No. 2010/827 – G.M. Satyapriya vs.

Bank of India by which while dismissing appeal and confirming order of District Forum

imposed Rs.5,000/- as cost.

2.       Brief facts of the case are that complainant/petitioner withdrew Rs.41,000/- from

OP/Respondent Bank on 24.1.2009 from her saving bank account.  The amount

withdrawn included 82 currency notes of Rs.500/- denomination.  Soon after withdrawal,

Rs.17,000/- were robbed by three miscreants at the counter of the bank from the

complainant and she reported incident to Hall In charge and the Branch Manager and

also lodged FIR.  As she was robbed in bank premises, it was alleged that bank was

responsible for its negligence and filed complaint.  OP/respondent contested claim and

submitted that some third person in the Hall pointed out to the complainant that one of

the notes  in her hand was fake and in that process first took the note from the

complainant’s hand and then handed back the currency notes to her and left bank hall.

Complainant did not raise any alarm about this incident and she was also shown CCTV

recording from which it appeared that the main miscreant was accompanied by two

persons.  Complainant identified the miscreant who had taken currency notes from

her.  OP further submitted that there were 8 CCTV cameras installed in the banking hall

covering all important functions and there was also a security guard present on the main

gate at the time of occurrence and denied negligence on its part and prayed for

dismissal of the complaint.  Learned District Forum after hearing both the parties

dismissed complaint on the ground that police investigation was still pending and matter

requires evidence as witnesses have to be examined and complainant was advised to

approach appropriate Court of law.  Against this order, appeal filed by the complainant

was dismissed by impugned order, hence, revision petition was filed.

3.       Hard learned Counsel for the parties and perused record.

4.       It is admitted fact that complainant received money from the bank counter and

during the curse of counting Rs.17,000/- were robbed from her by miscreants.  CCTV

cameras were also in working condition in the hall from where money was snatched and

security guard was also on the gate.  In such circumstances, no negligence can be

attributed on the part of OP/respondent. Learned State Commission while dealing this

aspect held as under:“10.    From the side of the Bank it has been averred in their

affidavit that there are CCTV camera fixed in the Branch of the

Bank at appropriate places and are functional.  It has also to be

noticed that during the course of police investigation in the replay

of CCTV camera the picture portrayed the person who took the

notes from the complainant was available and the complainant

identified him and his accomplices. That will show that there was

proper affixation of CCTV cameras in the bank and there was no

negligence in respect of this matter on the part of the Bank.  There

was also security guard available at the door but the security

guard did not come into picture because the lady did not raise an

uproar and did not shout.  It appears that it was only after the

tricksters had left the bank that the lady awoke to the situation.

The lady is herself responsible for the loss because she handed

over the notes to an unknown person and that she has therefore

been herself negligence and is responsible for the consequences”.

 

Thus, it becomes clear that there was neither any deficiency nor any negligence on the

part of respondent and learned State Commission has not committed any error in

dismissing appeal, though, on other counts.

5.       Learned Counsel for the petitioner has placed reliance on (2004) 6 SCC 113 –

Sumatidevi M. Dhanwatay Vs. Union of India in which compensation awarded by State

Commission was upheld by Hon’ble Apex Court as complainant was travelling in

1st class air-conditioned berth and a violent crowd entered the compartment, broke the

doors, windows, etc., and assaulted the complainant and other persons and took away

ornaments and other valuables of the complainant.  This judgment does not help to the

petitioner in the case in hand because in aforesaid case, complainant was travelling in

air-conditioned coach after purchasing ticket and it was obligatory on the part of railway

authorities to provide safety to the passengers till destination, whereas in the case in

hand it was not obligatory on the part of bank authorities to provide extra-ordinary safety

to bank customers as bank authorities had already installed 8 CCTV  cameras in the

hall and had  security  guard on the gate.  Learned Counsel for the petitioner also

placed reliance on the judgment of this Commission in R.P. No.1690 of 2000 – Union of

India (UOI) and Ors. Vs. Sanjiv Dilsukhrai Dave and Anr. in which baggage was stolen

of the passenger from sleeper coach and awarded compensation was upheld by the

National Commission.  This judgment also does not help to the petitioner in the

aforesaid case.  Negligence on the part of railway administration was proved and

negligence was observed as under:

“10. As regards the issue of negligence of the railway administration, a list of duties prescribed by railway administration "TTE for Sleeper Coaches" is brought on record. Of these, duties

prescribed at Sl. No. 4, 14, 16 and 17 are very relevant. These read as follows:

"4. He shall check the tickets of the passengers in the coach, guide them to their berth/seats and prevent unauthorised persons from the coach. He shall in particular ensure that persons holding platform tickets, who came to see off or receive passengers do not enter the coach.

14. He shall ensure that the doors of the coach are kept latched when the train is on the move and open them up for passengers as and when required.

16. He shall ensure that the end doors of vestibuled trains are kept locked between 22.00 and 6.00 hrs. to prevent outsiders entering the coach.

17. He shall remain vigilant particularly during night time and ensure that intruders, beggars, hawkers and unauthorised persons do not enter the coach".

11. The above duties clearly show that there is a responsibility cast on the TTE attached to the second class sleeper coach to be very vigilant about anyone other than the reserved ticket holders entering the compartment, to such an extent that he is required to prevent even a relation of the passenger holding a platform ticket who comes to see off a passenger from entering a coach. The TTE is particularly required to take special care in the night as brought out in Sl. No. 16 and 17. Sl. No. 14 clearly casts a responsibility on him to ensure that the doors of the coach are kept latched when the train is on the move. In the case before us, it is the contention of the Respondent that the intruder came when the train was on the move in the night and this has not been seriously challenged. Admittedly, the TTE has failed in the performance of his duties which lead to the incident of theft. The arguments of the Petitioner that the rules nowhere provide that there should be a TTE for each sleeper coach cannot be accepted because, then, the impressive list of duties which would remain only on the paper, since they cannot be effectively enforced”.

6.       In the case in hand there appears to be neither any negligence nor any deficiency

on the part of respondent and in such circumstances, learned State Commission has

not committed any error in affirming judgment of District Forum dismissing complaint.

Apparently, there is neither any jurisdictional error nor any illegality or material

irregularity in the impugned order and in such circumstances, revision petition is liable to

be dismissed.

7.       Learned State Commission while dismissing appeal and affirming order of District

Forum imposed Rs.5,000/- as cost to be payable to respondent bank.  Learned State

Commission did not agree with the finding of District Forum and dismissed appeal on

other counts.  In such circumstances, it was not warranted to impose cost on the

petitioner and in such circumstances, order imposing cost is to be set aside.

8.       Consequently, revision petition is partly allowed and order imposing cost of

Rs.5,000/- by impugned order is set aside and rest of the impugned order is affirmed

with no order as costs

..………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

          FIRST APPEAL NO. 369 OF 2009

(Against the order dated 11.08.2009 in RBT No. 15/2008 in Complaint No. 9 of 1998 of

the State Consumer Disputes Redressal Commission, U.T. Chandigarh)

 

Shri Anand Parkash, Husband of Smt. Usha Rani (Deceased), Resident of House No. 138, Block 18, Mohalla Dogran, Hisar                                                …      Appellant

                                                    

                                                     Versus

 1. Dr. Satya Sawant, Sawant Clinic, 6-7, Churamani Shopping Complex, Hisar

2.  Churamani Vishnu Devi Maternity Hospital, Through Dr. Satya Sawant, Medical Superintendent, Hisar

                              …      Respondents

 

BEFORE:

          HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

 

For Appellant                : Ms. Sangeeta Sondhi, Advocate

For Respondents         : Mr. Prasenjit Keswani, Advocate for R1

                                         Mr. Sanchar Anand, Advocate for R-2

 

Pronounced on 31 st   January, 2013

 

ORDER

 

PER VINEETA RAI, MEMBER

 

1.      This First Appeal has been filed by Anand Parkash, Appellant herein and original

complainant before the State Consumer Disputes Redressal Commission, U.T.

Chandigarh (hereinafter referred to as the State Commission) being aggrieved by the

order of that Commission which had dismissed his complaint of medical negligence

against Dr. Satya Sawant and Anr., Respondents No. 1 and 2 herein.

2.      In his complaint before the State Commission, Appellant had stated that his late

wife Smt. Usha Rani (hereinafter referred to as the Patient) on conceiving her second

child in March, 1996 was under the medical supervision and care of Respondent No.1,

who apart from working in Respondent No.2-Hospital was also doing private

practice.  On 22.12.1996, the patient approached Respondent No.1 with mild labour

pains and was admitted on advice of Respondent No.1 in Respondent No.2-Hospital,

where she was put on a drip to induce labour for a normal delivery.  Respondent No.1

was fully aware that patient’s first child had been delivered through cesarean section

and that she was also suffering from anaemia with a very low haemoglobin count but no

arrangements for blood transfusion in anticipation of any emergency was made.  She

was kept in the labour room, where after 40 hours of labour she delivered a male

child.  The patient developed complications immediately after delivery and blood

transfusion became necessary.  Appellant and his family donated seven units of blood

on the spot, which was infused without any cross checking.  Soon after, the patient went

into an irreversible shock and was declared dead at 5.40 P.M.  Shocked and aggrieved

by her untimely and avoidable death, Appellant lodged an FIR at the Police Station and

also a complaint with the Commissioner, Hisar Division, after which an enquiry was

conducted by doctors from the Medical College & Hospital, Rohtak but nothing came

out of it because of Respondent No.1’s political clout.  Appellant, therefore, filed a

complaint before the State Commission alleging medical negligence and deficiency in

service against Respondents, which led to the tragic and untimely death of his wife, who

was gainfully employed.  It was requested that the Respondents be jointly and severally

directed to pay compensation amounting to Rs.10,65,512/-, which included loss for

future earnings at Rs.6500/- per month, medical and other expenses as also litigation

costs.

3.      Respondents on being served filed written submissions, in which they denied that

there was any medical negligence or deficiency in service on their part. Respondent

No.1 while admitting that the basic cause leading to the death of the patient was Post

Partum Haemorrhage (PPH) contended that following Patient’s death independent

enquiries were conducted by a Medical Board of PGIMER, Chandigarh, which

confirmed that there was no negligence or deficiency in service in the medical treatment

and care to the Patient.  Further, an enquiry conducted by another Board of experts

from Medical College & Hospital, Rohtak also concluded on the basis of evidence

before it, including the medical records, that there was no medical negligence in this

case.  It was specifically concluded that at the time of her delivery, the Patient was not

anaemic as contended by the Appellant and it was only after careful assessment of her

condition that she was cleared for a normal delivery.  The fact that she had previously

undergone a cesarean section by itself was not contraindicated in this case since the

first cesarean section was necessitated because of pre-oclasptia and not because of

any cephalo pelvic disproportion.  The process of her labour was carefully monitored

and the labour period in fact was less than 24 hours during which period all care and

precautions were taken.  The Appellant was also asked to arrange blood well in

advance.  After the PPH occurred, standard emergency treatment was given, including

seven units of blood, but unfortunately patient went into irreversible shock and she

could not be saved.  It was also contended that the police had investigated the matter

and found no medical negligence on the part of Respondents.  Respondent No.1 also

stated that she had not taken any monetary consideration from the Patient.   She treated

her not in her capacity as a private practitioner but in the Respondent-Hospital which is

run as a Trust.  Under the circumstances, the case is not legally maintainable under the

Consumer Protection Act, 1986. 

4.      The Haryana State Consumer Disputes Redressal Commission, after hearing the

parties and on the basis of evidence produced before it, including the reports of the

Medical Boards of PGIMER, Chandigarh and Medical College & Hospital, Rohtak,

dismissed the complaint, following which the Appellant filed an appeal before the

National Commission, who vide its order dated 28.04.2008 remanded the complaint to

the U.T. Chandigarh State Consumer Disputes Redressal Commission on the grounds

that despite a specific request by the Appellant seeking permission of the State

Commission to appoint any of the two doctors, namely, Dr. Vijay Luxmi Lal or Dr. G.I.

Dhall, to give their expert opinion, this application was not disposed of by the State

Commission either by accepting or rejecting it and it, thus, remained pending.  The

National Commission opined that in the interest of justice, the matter be reconsidered

by the State Commission in detail and the Appellant may be given an opportunity to

lead the evidence of any of the two doctors as sought by him in his application dated

28.01.1999 before the State Commission.  On remand, the State Commission permitted

Appellant’s request to replace the earlier two experts named by her who were not in a

position to give expert evidence by either of two other experts, namely, Dr. Vijay Kumar

Kadam and Dr. M.C. Gupta.  Consequently, Dr. M.C. Gupta appeared before the State

Commission and Respondents were given an opportunity to cross examine him.  The

second doctor (Dr. Vijay Kumar Kadam), however, sent his views in writing and did not

appear in person.  The State Commission after hearing the parties and considering the

entire evidence, including the evidence filed before the Haryana State Consumer

Disputes Redressal Commission, concluded that there was no medical negligence in

the treatment of the Patient.  The relevant observations of the State Commission are

reproduced:

“25.    In view of the above findings by the two Medical Boards constituted by the specialists in the field who had gone into the record of the patient as well as her treatment and who had given a clean chit to the doctors attending upon the deceased, which the complainant has not been able to rebut with any cogent medical evidence/literature, we are of the opinion that in this case, no negligence could be attributed to the doctor for waiting for normal delivery to take place or in the management of PPH.  In this context, it is also relevant to mention that Dr. M.C. Gupta, who himself is not a specialist in Gynaecology, has in his evidence not been able to pinpoint or indicate as to where the Medical Boards had gone wrong or what was wrong with the conclusion they had drawn.  Consequent to

the order of Hon’ble National Commission, full opportunity had been afforded to the complainant to assail the opinion of the Boards but as stated earlier, in our opinion, the complainant has not been successful in doing the same.  It is unfortunate that the wife of the complainant died after her delivery but it is on record that the death was due to uncontrollable Post Partum Haemorrage, which the doctors tried their best to manage but were unable to do so and failed despite their best efforts.

                                    

26.     In the circumstances narrated above, we are of the clear opinion that no medical negligence can be attributed to the treating doctors or the hospital and consequently, the complaint is dismissed.  However, under the peculiar circumstances of the case, the parties are left to bear their own costs of litigation.”

 

Hence, the present first appeal.

5.      Learned counsel for both parties made detailed oral submissions.

6.      Learned counsel for the Appellant contended that the State Commission erred in

concluding that there was no medical negligence in the treatment of the Patient despite

clear cut evidence that due care was not taken in her treatment and by disregarding the

evidence of two medical experts, Dr. M.C. Gupta as also Dr. Vijay Kumar Kadam.  It

was specifically contended that the Patient being anaemic with a Haemoglobin count of

7.8 gms. and having undergone an earliercaesarian section was made to undergo

prolonged and induced labor, which was responsible for both the PPH and her eventual

death.  The situation was further aggravated by the fact that there was also a doubt

whether the blood that was transfused was cross-checked with the Patient’s blood

group since no arrangement was made for blood by Respondents in anticipation of any

emergency.  It was specifically contended, as observed by Dr. M.C. Gupta, that the

Patient had six high risk factors, apart from anaemia and an earlier caesarian section

(which makes the wall of the uterus weak) and these and other factors including obesity,

small stature as also hypertension makes prolonged and induced labour very risky and

is clearly contraindicated.  It is safer to perform a caesarian section in such

cases.  Counsel for the Appellant stated that the two Medical Boards of PGIMER,

Chandigarh and Medical College & Hospital, Rohtak gave biased findings of there being

no medical negligence and this had also been reported in the local press, which was

filed in evidence before the State Commission.  It was contended that the State

Commission erred in not relying on the medical evidence of Dr. M.C. Gupta merely

because he was not a Gynaecologist whereas he had a Post Graduate Degree in

Medicine as also the statement/affidavit of Dr. Vijay Kumar Kadam, a well-known

Gynaecologist of Delhi, who had opined that there was medical mismanagement of the

case.

7.      Counsel for the Respondents on the other hand challenged the above allegations

and stated that the contention of the Patient having high risk factors was not factually

correct.  It was specifically pointed out that the Haemoglobin count which was 7.8 gms.

during the Patient’s earlier visits in July and September, 1996 increased to over 10 gms.

at the time of admission (as recorded in her bed-chart) because she had been

prescribed iron tablets and other drugs to increase the Haemoglobin count.   Further, her

blood pressure during these visits as also at the time of her admission and in labour

room was within normal limits.  It was also stated that the actual period of her labour

was less than 24 hours and not 40 hours.  The enquiries conducted by two highly

reputed medical institutions into this case also clearly confirmed that there was no

medical negligence or deficiency in service in the treatment of the Patient.  Appellant’s

contention that all the enquiry reports were biased is based on pure conjecture and is

prima facie unreasonable. 

8.      We have considered the submissions made by both learned Counsel as also the

evidence on record, including the medical reports and opinions of the Medical Boards

and Medical Experts.  Patient’s admission in Respondent’s nursing home and her death

from PPH following a normal delivery are admitted facts.  It is further not in dispute that

following her death and to ascertain if it was because of any negligence or deficiency in

her treatment, as alleged by her husband, detailed enquiries were conducted, including

by two Medical Boards as also by a Chief Medical Officer.  All these enquiries

concluded that there was no medical negligence or deficiency in service in the case and

the PPH was an unfortunate and unforeseen incident, for which also emergency

treatment was given.  This was sought to be challenged by the Appellant on the ground

that Patient being high risk case should not have been permitted to undergo prolonged

labour and an immediate cesarean section would have saved her life.  From the

evidence on record, we are unable to conclude that the Patient was a high risk

case.  Admittedly her Haemoglobin count was low, three months prior to her delivery as

per the medical records but at the time of her admission (as per the bed chart) because

of medication, including iron supplementation it had increased to 10 gms., which is not

indicative of anaemia.  There has been no evidence to controvert that there was any

error in the bed chart prepared at the time of her admission.  Further, Appellant’s

contention that the Patient had hypertension is also not borne out by the medical

records, which clearly indicated that it was very much within normal limits.  It is also a

fact that though the first delivery was conducted by cesarean section, this was

undertaken not because of any cephalo pelvic disproportion but because of her

temporary medical condition (pre-oclasptia) at that time, which necessitated a cesarean

section.  It is also on record that the progression of the Patient’s labour and delivery was

carefully monitored and even when the PPH occurred standard emergency treatment

was given, including blood transfusion.  These were clear findings of the Medical

Boards consisting of highly eminent doctors from PGIMER, Chandigarh, a premier

referral institution of excellence, and also from the Medical College & Hospital,

Rohtak.  Appellant’s contention that these reports were biased appears to be both

unreasonable and not acceptable since there can be no plausible reason for the

medical boards of PGIMER, Chandigarh and Medical College & Hospital, Rohtak to be

biased in this case.  Also no concrete evidence has been produced by the Appellant in

support of these contentions.  The Appellant was given a second opportunity to produce

evidence of medical expert in support of his contention alleging medical

negligence.  We agree with the State Commission that the evidence of the medical

expert Dr. M.C. Gupta, who had neither examined the Patient nor was a Gynaecologist,

has little evidentiary value in this case.  In fact, this witness had admitted during his

cross-examination that his evidence was based on advice obtained by him from a

Gynaecologist.  Further, neither he nor other medical expert Dr. Vijay Kumar Kadam,

who had filed his written evidence, have been able to point out any deficiency,

shortcoming or bias in the reports of the two Medical Boards.  Dr. Gupta has made

some vague allegations that the report does not mention the date when it was signed by

experts and that it does not indicate what evidence they had actually examined. These

are trivial observations since they do not in any way contradict the actual findings of the

two Medical Boards.

9.      Keeping in view these facts, we are unable to conclude that the Appellant, on

whom there was onus to do so, has been able to prove that there was any medical

negligence in the treatment of his late wife by the Respondents.  On the contrary,

keeping in view the findings of the Medical Boards from two major institutions PGIMER,

Chandigarh and Medical College & Hospital, Rohtak as also the documentary evidence

pertaining to the medical records of the Patient, it is clear that there was no negligence

or deficiency in the medical treatment and care of the Patient.  We, therefore, uphold

the order of the State Commission in toto.  The first appeal having no merit is hereby

dismissed.  No costs.   

Sd/-

(ASHOK BHAN, J.)

PRESIDENT

 

Sd/- 

(VINEETA RAI)

MEMBERSB/Mukesh  

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

          FIRST APPEAL NO. 494 OF 2007

(Against the order dated 15.02.2007 in O.P. No.9/1993 of the Tamil Nadu State

Consumer Disputes Redressal Commission, Chennai)

 

Javeed S/o Ameer No. 7, C. Kaladipet Market Lane Tiruvottiyur Chennai-19 Tamil Nadu                                                                  …      Appellant

 

Versus

Manager/Officer-in-charge C.S.I. Rainy Hospital G.A. Road, Chennai-600021 TamilNadu

                                                                   …      Respondent

 

BEFORE:

          HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

 

For Appellant                     :   Mr. CKR Lenin Sekar, Advocate

For Respondent                :   Mr. Parivesh Singh, Advocate

 

Pronounced on 31 st   January, 2013

 

ORDER

 

PER VINEETA RAI, MEMBER 

1.      This first appeal has been filed by Javeed, Appellant herein and original

complainant before the Tamil Nadu State Consumer Disputes Redressal Commission,

Chennai (hereinafter referred to as the State Commission) being aggrieved by the order

of that Commission which had dismissed his complaint of medical negligence against

Manager/Officer-in-charge, C.S.I. Rainy Hospital, Respondent herein.

FACTS :

2.      Appellant, who was around 6 years old at the time of filing the complaint before

the State Commission, was admitted to Respondent hospital with complaint of

temporary Inguinal Hernia (R) and after diagnostic tests, confirming that he was

suffering from Inguinal Hernia (R), he was operated on 12.08.1989.  However, instead

of operating on the Right side, Appellant was operated for Left Inguinal Hernia and

Hernitomy.  This mistake was noted by the main doctor of the hospital and after his

discharge on 26.08.1989 he was advised to come back in September,

1989.  Appellant’s father, therefore, got him back on 07.09.1989, when he was informed

that an operation is required on the Right Inguinal Herniatomy.  His father refused to get

another surgery done and he was taken to Maharaja Hospital, Chennai, where after a

medical check-up he was informed by Dr. A.P. Subramaniam that Respondent had

made a mistake in conducting the first surgery on the Left Inguinal Hernia.  Being

aggrieved by the medical negligence on the part of Respondent, Appellant filed a

complaint before the State Commission and requested that Respondent be directed to

pay him Rs.1,50,000/- as compensation.

3.      Respondent on being served denied these allegations and stated that Hernia in

children are often bilateral, as is in the instant case.  Since it is well established that

surgery cannot be done on both sides at the same time, Appellant’s parents were

informed that both sides would have to be operated through two separate surgeries,

which they had agreed.  At the operation theater, the doctor conducting the surgery

noted that the left side scrotum was bulging more and, therefore, it was necessary to

conduct an operation on the Left side first, about which the Appellant’s mother, who was

waiting outside the operation theater, was duly informed.  The surgery was successfully

conducted and after the wound was sutured on 26.08.1989 Appellant was discharged

and was asked to come back for the second surgery in September, 1989 during school

vacations.  In the meantime, Appellant was administered medicine and injection for the

second surgery.  However, when the Appellant was readmitted for repair of the Right

side Herniatomy, his father for reasons best known to him got him discharged without

waiting for the surgery.  It was specifically denied that the Appellant’s parents were

informed that surgery was required only on the Right side.  Thus, there was no medical

negligence on the part of the Respondent.

4.      The State Commission after hearing the parties dismissed the complaint filed by

the Appellant against the Respondent by stating as follows:“The fact remained that the mother of the complainant was aware of the operation of the left side hernia as she had given consent for herniatomy which meant operation of both sides as explained by RW-2.  Further, right through the treatment and surgery of the complainant, only the mother of the complainant was present and only on 08.09.1989, the father had as suggested in the cross-examination, had compulsorily asked for the discharge of the complainant.  This was with an intention to extort money from the opposite party.  He had projected a false stand as if he was present throughout from the beginning till the complainant was discharged.  RW-2 had also in her evidence clearly stated that in children, the swelling would appear and dis-appear and that was the reason why while operating a child for hernia, the consent was got only for herniatomy which related to both sides of the scrotum.  The opposite party had taken due care in the discharge of their duties and there was no negligence whatsoever in operating the complainant.  As a competent surgeon, RW-2 had taken the necessary care and caution so that the child’s life could be saved.  The complainant’s father had also published the case that he had consulted one Dr.A.P. Subramaniam.  But, no evidence was produced to show that any other doctor had been consulted.  There was also no proof produced by the complainant with regard to the expenses incurred.”

 

The State Commission also cited medical literature entitled “The Surgical Clinics of

North America” [Vol. 65/Number 5, October 1985], confirming that Hernias in children

are often bilateral but both may not always be diagnosed during a medical examination

and further that Inguinal Herniatomy also has a silent side which may not always be

apparent on sight. 

5.      Being aggrieved by the dismissal of his complaint Appellant has filed the present

first appeal.

6.      Learned Counsel for both parties made oral submissions.

7.      Learned Counsel for the Appellant stated that the State Commission erred in not

taking cognizance of the medical records pertaining to the Appellant’s case history in

Respondent hospital, which was in evidence before it.  As per these records, a clear

diagnosis of obstructed Inguinal Herniatomy on the Right side was made which was

also recorded.  This diagnosis was again confirmed in the detailed case history

recorded on 13.08.1989.  On 25.08.1989 when the Appellant was admitted for surgery,

it was again clearly noted that he was “Posted for (R) Herniatomy on

25.08.1989”.  However, it was only on 26.08.1989 i.e. just prior to the surgery that it was

noted in the case sheet that Appellant had Left Inguinal Herniatomy, which required to

be operated.  Counsel for the Appellant stated that Respondent’s contention that the

Herniatomy was bilateral and that before the surgery the Appellant’s mother was

informed that the surgery would be first done on the Left side is not factually correct

because nowhere does the diagnosis in the case history indicate that the Appellant was

suffering from bilateral Inguinal Herniatomy.  By operating on the Left side of the

Herniatomy, when it was not required Respondent was clearly guilty of medical

negligence, for which the compensation sought of Rs.1,50,000/- is fully justified.

8.      Learned Counsel for Respondent on the other hand stated that the State

Commission had rightly relied upon the medical literature as also the evidence on

record to conclude that there was no medical negligence by stating that it was clear

from the record that the Appellant was suffering from bilateral Herniatomy, i.e. both on

the Right and Left sides, which is a common phenomenon in children, and in the

operation theater when a well-qualified pediatric doctor observed that the bulging was

more prominent on the Left side, after informing the mother of the Appellant, she rightly

conducted the surgery first on the Left side and advised that the Appellant be brought

for the second surgery on the Right side in September, 1989.  Counsel for Respondent

stated that this is evident from the consent letter signed by Appellant’s parents as also

the case history recorded on 07.09.1989.

9.      We have carefully considered the submissions made by learned counsel for both

parties and have gone through the evidence on record, including the documentary

evidence from the Respondent hospital pertaining to the Appellant’s case.  We note

from the recorded case history of the Appellant that right from the time when he was

brought to the hospital i.e. on 12.08.1989, he was subjected to a number of diagnostic

and clinical tests and on the basis of these tests, a clear cut diagnosis of obstructed

Inguinal Herniatomy (R) was made.  These findings were confirmed on 13.08.1989

following a physical examination when it was specifically noted that the Appellant was a

known case of Inguinal Herniatomy (R) and there was no other complaint.   This

diagnosis was confirmed at the time of his admission for the required surgery on

24.08.1989 and again on 25.08.1989, when it was stated that the Appellant was posted

for (R) Herniatomy.  It was only on 26.08.1989 at the time of the operation that for the

first time it was stated that this was a case of Left Inguinal Herniatomy.  We have also

gone through the consent letter signed by the Appellant’s parents (since he was a

minor) and it only states that the Appellant’s mother had given permission for operation

of Herniatomy.  No mention is made about bilateral Herniatomy.  Respondent has not

been able to produce any evidence that Appellant’s parents were informed that

Appellant was suffering with bilateral Herniatomy or that just prior to the surgery they

were informed that the surgery would be conducted on the Left side and not on the

Right side.  The letter dated 07.09.1989 only states that the Appellant is posted

tentatively for Right Herniatomy, which does not help the Respondent and only proves

the Appellant’s contention that a surgery on the wrong side was carried out on

26.08.1989. In view of the overwhelming documentary evidence from Respondent’s

own hospital discussed in the foregoing paras, we are unable to agree with the finding

of the State Commission that as per the evidence on record there was no medical

negligence in the treatment of the Appellant.  Clearly, Appellant was diagnosed for

conducting a surgery on the Right Inguinal Herniatomy whereas without any evidence

that it was the Left side which required the surgery, this surgery was conducted.  Had

the Respondent advised the Appellant’s parents during their visit to the hospital that the

Appellant had bilateral Herniatomy, then perhaps there would be some case for the

Respondent to explain how the surgery was conducted on the Left side.  In the instant

case, nowhere did the case history state that the Appellant had symptoms of bilateral

Herniatomy.  On the contrary, as stated above, after clinical and diagnostic tests, it was

recorded that the surgery was for Herniatomy on the Right side.  In view of these facts,

we are of the view that there is force in the Appellant’s contention that he was wrongly

operated for Left Inguinal Herniatomy whereas  the  surgery  should  have  been

conducted on the Right side.

10.    What constitutes medical negligence is now well settled through a number of

judgments of this Commission as also of the Hon’ble Supreme Court of India.  One of

the principles to test medical negligence is whether a doctor exercised a reasonable

degree of care and caution in treating a patient [Supreme Court Case Indian Medical

Association v. V.P. Shantha (1995) 6 SCC 651 and this Commission case Tarun

Thakore v. Dr. Noshir M. Shroff (OP No. 215 of 2000)].  In the instant case, the facts

clearly indicate that the required reasonable degree of care and caution was not taken

by Respondent in the treatment of the Appellant and, thus, Respondent was guilty of

medical negligence, for which the Appellant should justifiably be compensated.

11.    In view of these facts and respectfully following the judgment of the Hon’ble

Supreme Court cited above, we are unable to uphold the order of the State Commission

and set aside the same.  Respondent being guilty of medical negligence is directed to

pay the Appellant Rs.1,00,000/- as compensation for the unnecessary suffering and

agony caused to him and to his family within two months from the date of this order. 

12.    The present appeal stands disposed of on the above terms.  No costs.  

Sd/-

(ASHOK BHAN, J.)

PRESIDENT

 

Sd/-

(VINEETA RAI)

MEMBER Mukesh